Suppeme  (2©yp6  ©f  [llii^©is, 

NORTHERN    GRAND  DIVISION. 

March  Term,  A.  D.  1887. 


AUGUST  SPIES   ET  AL.,  \   Error  to  the 

Plaintiffs  in   Er, 


Criminal  Court  of 

Cook  County. 

THE  PEOPLE  OF  THE  STATE  OF 

ILLINOIS,  ^      Hon.  JOS.  E.  OAKY, 


Dcfcdant  in  Error.  /  Presiding. 


Indictment  for   Murder. 


Brief  ^nd  Argument 
for   plaintikks  in  error. 


W.  P.  BLACK  AND 
SALOMON  &.  ZEISLER, 

Attorneys  for  Plaintiffs  in  Error. 


..d 


Index. 


Page. 

Statemekt  of  Charge 1 


A.   THE  PLAINTIFFS  IN  ERROR  ARE  NOT  GUILTY. 

Evidence  Legitimately  before  the  Jury 3 

Oscar  Neebe 3 

Samuel  Fielden 3 

a.)     Tke  claim  that  he  made  threats 7 

b.)     The  claim  thai  he  fired  from  the  -wagon 10 

c.)     The  claim  that  he  fired  from  behind  the  wagon 13 

Albert  R.  Parsons 20 

Michael  Schwab 37 

a.)     His  7novements 29 

b.)     Sfies^  movements 33 

c.)     Improbability  of  Thompson^ s  story 38 

August  Spies 40 

«.)      The  McCormick  meeting 40 

^.)     The  Revenge  circular 45 

c.)     The  circular  calling  the  Haymarket  meeting 49 

rf.)     The  signal  "  Ruhe," SO 

e.)     Spies'  Haymarket  speech 53 

f.)     Gilmer's  testimony 57 

1.)     Schnaubelt's  height 60 

2.)     Spies  did  not  enter  the  alley 60 

3.)     Fischer  at  Zepfs  Hall 66 

4.)     Bomb  not  thrown  from  alley 68 

5.)     Gilmer's  impeachment 74 

Adolph  Fischer 83 

The  W.  Lake  St.  meeting  conspiracy 83 

1.)     Six  accused  no  parties  to  it 91 

3.)     Bomb-throwing  foreign  to  it 91 

3.)     Bomb  not  thrown  bj- a  member  thereof 93 


Evidence  Legitimately  before  the  Jury  {Continued):  Page. 

George  Engel 96 

Louis  Lingg : 99 

The  Haymarket  Meeting 113 

Our  Positions  upon  the  Legitimate  Evidence 123 

I.  Mere  participation  in  an  unlawful  assembly  does  not 
make   responsible   for  the   independent    crime   of   a 

participant ..„ 12S 

II.  To  hold  the  accused  as  accessories  on  the  ground  of 
conspiracy,  the  principal  must  be  identified  as  co- 
conspirator    13S 

III.     And  the  crime  must  have  been  within  its  purview 141 

Illegitimate  Evidence 145 

I.     Newspaper  literature 155 

II.    Johann  Most's  book 161 

III.  Various  objects 164 

I.)     Bloody  clothes 164 

2.)     Fragments  resulting  frmn  dynamite  exferiments 165 

J.)     Tin  cans 166 

4.)     Blasting  furnace 168 

S-)     Flags  and  mottoes „ ^ 169 

6.)     Dynamite  at  Arbcitcr  Zeitung „  169 

7.)      Weapons  found  on  Fischer 173 

8.)     Bombs  found  after  May  4,  18S6 173 

IV.  Evidence  extorted  from  accused 173 

/.)     Improper  cross-examination 174 

2.)     Objects  unlawfully  seized 179 

V.     Speeches  and  private  utterances 184 

a.)     The  Board  of  Trade  demonstration 185- 

b.)      West  I2tk  street  meeting 189 

c.)     The  American  Group 190 

d.)     Private  conversations  of  Spies 193 

c.)     Eight-hour  agitation  meeting 195 

f)     General  tendency  of  utterances 197 

VI.     Other  illegitimate  evidence 198 

Injuries  of  officers 198 

Schnaubelt^s  disguise 198' 


Page. 

Our  Positions  upon  the  Illegitimate  Evidence 303 

I.     No  responsibiltv  for  the  act  of  an  associate  in  purpose, 

but  not  in  aelfon 203 

II.     Evidence  of  distinct  substantive  offenses  inadmissible. . .   207 

III.  Prima  facie  conspiracy   must  first  be  establishied,  before 

acts   or   declarations    of    one    are    evidence    against 
another 212 

IV.  Such    acts   and    declarations  must  be  in    prosecution  of 


conspu-acy . 


313 


Refusal  of  Motions  at  Close  of  State's  Case 219 

I.     Motion  for  Neebe 219 

11.     Motion  for  other  accused  except  Spies  and  Fischer 226 

B.     ERRORS  COMPLAINED  OF. 
Summary  of  Errors  considered  before 231 

AA.     Errors  in  the  Matter  of  Instructions 233 

Summary  of  our  complaints 232 

I.     Necessity  of  identifying  principal 334 

II.     Instructions  at  variance  with  proof 248 

III.  Hypothesis  unwarranted  by  evidence 255 

IV.  Mere  general  advice  does  not  constitute  accessory  ship.  .    256 
V.     Instruction  5}  contains  no  reference  to  evidence 269 

VI.  Erroneous  instructions  on  reasonable  doubt 272 

VII.  Instruction  limiting  right  of  jury  to  judge  of  the  law.  ..  276 

VIII.  Instructions  refused 279 

IX.  The  court's  instruction  sua  mot ii 286 

X.  The  instruction  as  to  form  of  verdict „  290 

XI.  The  instructions  as  a  whole 291 

BB.     Errors  on  Impaneling  of  Jury 299 

I.     The  law  relating  to  qualifications  of  jurors 299 

a.)      Constitutional  Provisions 299 

b.)     Their  construction  by  the  U .  S .  Supreme  Court BOO 

c.)     Their  Interpretation  by  our  own  Supreme  Court 305 

d.)     The  Statute  of  1874  and  its  Judicial  Construction 311 

e.)     Construction  of  similar  statutes  in  other  States 318 

_/".)     Propriety  of  Questions  in  reference  to  Peremptory  Chal- 
lenges    330 


VI 

BB.     Errors  on  Impaneling  of  Jury  {Continued):  Page, 

II.    Judge  Gary's  Rulings 333 

His  Positions 332 

Our   Contentions 335 

III.  Examinations  of  jurors  illustrative  of  Judge  Gary's  rul- 

ings    338 

IV.  The  twelve  who  tried  the  case 380 

V.     The  conduct  of  the  special  bailiff.... 391 

VI.     Misconduct  of  jury 393 

VII.     Number  of  peremptory  challenges  allowed  the  state 394 

VIII.     Manner  of  impaneling  the  jury  397 

CC.     Improper  Rem.\rks  by  the  Court 399 

DD.    Improprieties  of  Closing   Argument  of  State's  At- 
torney    408 

I.     The  objectionable  remarks 409 

II.     Decisions  relating  thereto ,.   415 

EE.     Refusing  to  Arrest  Judgment 420 

Conclusion  422 


ISIay  it  please  the  Court: 

On  the  night  of  the  4th  of  May,  18S6,  in  the  city  of 
Chicago,  a  meeting  of  citizens  was  being  held  on  Des- 
plaines  street,  between  Randolph  and  Lake,  commonly 
called  the  Haymarket  meeting.  Some  of  the  plaintiffs  in 
■error  were  present  at  that  meeting  during  a  part  or  the 
whole  of  the  time.  Others  were  not  there  at  all  while 
the  meeting  was  being  held.  As  it  was  approaching  a 
•close,  a  large  body  of  police,  some  180  in  number,  under 
the  command  of  Inspector  John  Bonfield,  came  from  the 
Desplaines  street  police  station,  situate  about  half  a  block 
south  of  Randolph  street,  on  Desplaines,  to  the  meeting, 
approaching  it  from  the  south,  and  on  reaching  a  line 
about  six  or  eight  feet  south  of  the  wagon,  from  which 
the  crowd  was  being  addressed,  commanded  its  imme- 
diate dispersion.  Directly  after  this  command  was  given, 
a  dynamite  bomb  was  thrown,  which  exploded  among 
the  policemen,  resulting  in  the  killing  of  several  of  them, 
among  whom  was  Mathias  J.  Degan. 

The  indictment  in  this  case,  stripped  of  legal  verbiage, 
so  far  as  it  was  attempted  to  be  supported  by  evidence, 
charged  the  plaintiffs  in  error,  together  with  William 
Seliger  and  Rudolph  Schnaubelt,  with  having  thrown  the 
bomb  which  killed  Mathias  J.  Degan,  or  with  having 
aided,  abetted,  assisted,  advised  or  encouraged  some 
person  in  the  throwing  of  that  bomb. 

The  provisions  of  the  statute  applicable  to  the  latter 
charge,  and  which  must  be  considered  in  the  deter- 
mination of  this  question,  are  Sees.  2  and  3  of  Div.  2 
of  Chap.  38,  Rev.  Stat,  of  111.,  1874,  ^0""^  as  Sees.  274 
and  275  of  our  Criminal  Code,  which  are  as  follows: 

"  Sec.  2.     An  accessory  is  he  who  stands  b\-  and  aids, 


"  abets  or  assists,  or  who,  not  being  present  aiding,  abet- 
"  ting  or  assisting,  hath  advised,  encouraged,  aided  or 
"  abetted  the  perpetration  of  the  crime.  He  who  thus 
"  aids,  abets,  assists,  advises  or  encourages,  shall  be  con- 
"  sidered  as  principal,  and  punished  accordingly." 

"  Sec.  3.  Every  such  accessory,  when  a  crime  is 
"  committed,  within  or  without  this  state,  by  his  aid  or 
"  procurement  in  this  state,  may  be  indicted  and  convicted 
"  at  the  same  time  as  the  principal,  or  before  or  after  his 
"  conviction,  and  whether  the  principal  is  convicted  or 
"  amenable  to  justice  or  not,  and  punished   as    principal." 

We  claim  that  the  evidence  in  this  case  fails  to 
establish  the  above  charge  against  any  of  tiie  plaintiffs 
in   error,  and   therefore  we   maintain  that 


A.     THE  PLAIXTIFFS  IX  ERROR  ARE  XOT  GUILTY. 

In  support  of  this  contention,  we  shall  consider,  sepa- 
ratelv,  the  cases  of  the  eight  plaintiffs  in  error,  so  far  as 
the  charge  was  attempted  to  be  supported  b\- 

EVIDENCE  LEGITIM.\TELY  BEFORE  THE  JURY. 

Oscar  Neebe. 

The  verdict  of  the  jury  adjudged  Oscar  W.  Neebe  to 
be  "  guilty  of  murder  in  manner  and  form  as  charged  in 
"  the  indictment,"  and  the  court  sentenced  him  to  fifteen 
years  in  the  penitentiary.  As  to  Mr.  Neebe,  we  con- 
tend that  there  is  no  pretense-  finding  support  in  the 
evidence  that  he  was  present  at  this  meeting,  or  knew 
of  the  purpose  of  holding  it,  or  was  consulted  as  to 
calling  it,  or  knew  that  the  same  would  be  held;  and 
that  there  is  no   testimony  that    shows,  or  tends  to  show. 


3 

that  he  advised,  aided,  encouraged,  abetted  or  assisted 
the  throwing  of  the  bomb.  We  find  ourselves  at  a  loss 
to  argue  the  case  of  Mr.  Neebe.  There  is  absolutely 
nothing  in  the  record  to  support  his  conviction;  and  in 
presenting  this  case  in  the  first  instance,  to  the  considera- 
tion of  this  honorable  court,  we  will  rest  as  to  Mr.  Neebe 
and  wait  to  see  what  the  representatives  of  the  prosecu- 
tion can  say  upon  this  record  in  support  of  a  verdict  and 
judgment  against  him   under  the  above  indictment. 


Samuel  Fielden. 

It  is  admitted  that  he  was  present  at  the  Haymarket 
meeting  and  was  one  of  its  speakers,  his  address  being 
interrupted  by  the  appearance  of  the  police  and  the  order 
for  its  dispersion;  and  that  he  was  on  the  ground  at  the 
time  of  the  e.xplosion  of  the  bomb. 

But  there  is  evidence  uncontradicted  which  shows,  in 
reference  to  his  prior  movements,  and  his  connection  with 
this  meeting,  the  following  state  of  facts:  On  Sunday 
night.  May  2d,  he  had  made  an  engagement  to  speak 
at  a  labor  meeting,  to  be  held  at  either  368  or  378  West 
1 2th  street,  on  Tuesday  night,  May  4th  (  V^ol.  M,  340; 
A,  272);*  on  May  4th,  on  arriving  home  in  the  evening, 
from  his  work  of  teaming,  he  saw  in  the  Evening  News 
an  announcement  of  a  meeting  of  the  American  group  of 
the  International  Working  People's  Association,  of  which 
group  he  was  a  member,  and  at  that  time  the  treasurer. 
The  notice  called  the  meeting  to  be  held  at  107  5th 
avenue  at  8  o'clock  that  night,  and  the  announcement  said 
"  Important  business."  Seeing  this  announcement,  Fiel- 
den   determined    to  attend    that    meeting,  because    of  his 

*A.  means  Vol.  2  of  the  abstract.  Vol.  1  of  the  abstract  svill  be  cited 
bv   ■'  lA."     We  cite  the  record  bv  the  letter  of  the  volume. 


official  relation  to  the  group,  instead  of  going  to  his  ap- 
pointment on  West  1 2th  street.  He  arrived  at  107  5th 
avenue  about  8  p.  m.  (Vol.  M,  306,  307;  A,  265).  The 
meeting,  which  was  attended  by  about  fifteen  members, 
among  whom  was  A.  R.  Parsons,  considered  the  mat- 
ter of  the  organization  of  the  sewing  women  of  Chi- 
cago, with  reference  to  the  eight-hour  movement,  and 
some  money  was  paid  out  b}'  Fielden,  upon  the 
order  of  the  meeting,  for  that  purpose.  The  meet-' 
ing  lasted  until  about  9  v.  M.  During  the  progress  of 
the  meeting,  Balthazar  Rau  called,  and  said  that  speak- 
ers were  wanted  at  the  Haymarket  meeting.  Pursuant 
to  this  notification  (the  business  for  which  the  Amer- 
can  group  meeting  was  called  having  been  substantially 
transacted),  the  group  meeting  adjourned,  and  Fielden 
Parsons  and  nearly  all  of  the  others  present  went  over  to 
the  Haymarket  meeting.  All  this  appears  from  the  tes- 
timony of  the  witnesses,  Patterson  (Vol.  M,  42,  4.4;  A, 
228),  Snyder  (Vol.  M,  loi;  A,  235),  Brown  (Vol.  M, 
120,  123;  A,  238),  Waldo  (Vol.  M,  168;  A,  245),  Mrs. 
Holmes  (Vol.  M,  279,  281;  A,  261),  Parsons  (Vol.  M, 
no;  A,  313),  and  other  witnesses. 

It  nowhere  appears  in  the  record  that  this  meeting  of 
ihe  American  group  considered  anything  else,  or  trans- 
acted an}'  other  business,  or  was  called  for  any  other  pur- 
pose e.xcept  as  above  suggested.  The  first  knowledge 
that  Fielden  had  that  the  Haymarket  meeting  was 
to  be  held  was  acquired  by  him  at  this  meeting  of 
the  American  group.  (Vol.  M,  321;  A,  269.)  When 
Fielden  reached  the  Haymarket  meeting  he  went  on  the 
speakers'  wagon  with  Parsons,  Brown  and  Snyder.  At 
that  time  Spies  was  still  speaking,  but  stopped  shortly 
after  their  appearance,  and  introduced  Mr.  Parsons  as  the 
next   speaker.      (  \'ol.    M,   102,    340,    341;    A,  235,  272.) 


Parsons  made  a  speech  of  about  an  hour,  after  which 
Fielden  spoke  for  about  twenty  minutes.  Probably  the 
most  reliable  account  of  his  speech  that  was  pre- 
sented by  the  prosecution  is  found  in  the  testimony 
of  Mr.  English,  who  attended  the  meeting  as  a 
reporter  for  the  Chicago  Tribune,  and  took  short- 
hand notes  at  intervals  of  the  proceedings,  and  the 
speeches  made.  (A,  129.)  It  is  to  be  observed, 
however,  that  Mr.  English  himself  says  his  instruc- 
tions from  the  Tribune  office  were  to  take  only  the 
most  incendiary  fart  of  t/ie  speeches  (K,  286;  A,  134), 
and  that  his  testimony  presents  only  an  abstract  of  what 
the  speakers  said  (A,  130;  K,  277,  278);  while  Fielden 
claims  that  English's  report  was  garbled,  and  does  not 
give  the  connections,  and  therefore  does  not  make  sense. 
(M,  346,  347;  A,  273.)  In  Fielden's  speech,  even  as 
reported  by  English,  however  (A,  132,  133),  not  one 
word  can  be  found  which  has  the  least  reference  to  the 
bomb-throwing,  or  contains  any  proposition  or  suggestion 
for  the  use  of  violence  that  night,  or  in  the  immediate 
future.  Fielden  took  for  his  text  an  utterance  of  Con- 
gressman Foran  of  Ohio,  to  the  effect  that  the  laborer 
can  get  no  relief  from  legislation,  and  tried  to  deduce 
from  the  facts  stated  by  him,  that  the  law  protected  only 
the  employer,  affording  no  protection  to  the  workingmen, 
if  they  were  injured  in  their  interests.  Speaking  of  the 
so-called  McCormick  riot  on  the  afternoon  of  May  3d, 
the  day  preceding  the  Haymarket  meeting,  to  which  we 
shall  have  occasion  to  refer  hereafter,  he  said,  "  Men,  in 
their  blind  rage,  •  attacked  McCormick's  factory,"  etc. 
(K,  282;  A,  132.) 

"  Men  in  their  blind  rage'''' — that  was  the  characteriza- 
tion by  Fielden  of  the  persons  who  threw  stones  at  Mc- 
Cormick's factory  and  employes.     True,  Fielden  said,  as 


a  conclusion  from  ihe  facts  stated  by  him,  "You  have 
"  nothing  more  to  do  with  the  law,  except  to  lay  hands  on 
"  it  and  throttle  it  until  it  makes  its  last  kick.  It  turns  your 
"  brothers  out  on  the  wayside,  and  has  degraded  them 
"  until  they  have  lost  the  last  vestige  of  humanity,  and 
"  they  are  mere  things  and  animals.  Keep  your  eye 
"  upon  it,  throttle  it,  kill  it,  stab  it,  do  everything  j'ou  can 
"  to  wound  it  or  impede  its  progress."  (K,  282;  A, 
132.)  This  is  foolish  talk,  but  what  man  in  his  right 
senses  will  claim  that  this  or  any  other  remark  testified 
to  as  having  been  made  by  Fielden  is  anything  more 
than  a  rhetorical  flourish  or  theoretical  statement  in 
regard  to  the  law  in  the  abstract  as  affecting  the  working 
classes?  How  can  it  be  seriously  maintained  that  such 
language  constituted  advice  to  the  throwing  of  a  bomb 
into  the  ranks  of  the  police,  who  had  not  yet  made  their 
appearance  on  the  scene,  who  were  not  then  expected  by 
anybody,  last  of  all  by  Fielden,  who  swears  he  had  no 
idea  of  there  being  a  superior  number  of  police  at  the 
station  near  by?  (M,  35S;  A,  275.)  As  well  argue 
that  the  excited  politician  who  proposes  to  "  knife  "  an 
obnoxious  candidate,  or  to  "  lay  him  out,"  or  "  put  a 
"  head  "  on  him,  or  to  "  destroy  "  the  opposite  party,  or 
to  "  throttle  "  the  opposition,  in  these  expressions  counsels 
personal  violence  as  against  the  individuals  involved  in 
the  suggestion.  It  seems  to  us  that  the  suggestion  that 
these  words  of  Mr.  Fielden  imported  advice  to  personal 
violence  against  the  otTicers  of  the  law,  or  that  t/iey  should 
be  stabbed,  throttled,  impeded,  wounded,  killed,  is  without 
foundation.  He  was  talking  of  a  system,  and  not  of  any 
class  of  men,  of  an  abstraction,  and  not  of  individuals. 

A  strenuous  effort  was  made  on  the  part  of  the  prose- 
cution, to  involve  Mr.  Fielden  personally  with  the  matters 
occurring  at  this  meeting  in  connection  with  and  immedi- 


ately  following  the  throwing  of  the  bomb,  and  we  propose 
briefly  to"  review  the  testimony  adduced  in  this  eftbrt.  It 
consists  of  three  parts. 

(a.)      The  claim  that  Ficlden  made  threats. 

Officer  Quinn  and  Officer  Haas  swear  that  they 
heard  Fielden,  the  speaker,  upon  the  wagon,  who  was 
speaking  at  the  time  the  police  force  approached,  cr\-  out 
in  a  loud  voice,  "  Here  come  the  blood-hounds  of  the  po- 
lice! Men,  do  your  duty  and  I  will  do  mine,"  or  similar 
words. 

Quinn  testifies  (A,  14)  that  he  heard  that  remark  when 
within  ?ikiOMX  fifty  feet  of  where  the  speaker  was,  while 
Haas  (A,  128;  K,  251)  says,  he  heard  it  when  the  first 
•company  of  the  police  got  north  of  Randolph  street,  within 
ten  or  fifteen  feet  of  the  wagon.  Haas  was  then  pretty 
near  the  middle  of  the  street  and  within  five  or  six  feet, 
yet  Haas  admits  on  cross-examination  that  he  was  a  'fit- 
ness at  the  coronerh  inquest.,  on  which  occasion  lie  said 
nothing  of  having  heard  Fielden  utter  these  -words. 
(A,  128;  K,  268.)  These  two  are  the  only  witnesses 
who  positively  swear  that  it  was  Fielden  who  made  that 
utterance. 

Lieut.  Steele  (A,  13)  testifies  that  his  and  Quinn's 
companies  constituted  the  front  line;  that  shortly  prior  to 
the  halt  being  called,  he  heard  somebody  say,  "  Here 
"  comes  the  blood-hounds.  You  do  your  duty  and  we 
"  will  do  ours;"  but  he  says  distinctly  that  he  cannot  tell 
who  made  the  remark,  the  sound  coming  from  in  front, 
while  they  were  marching.  It  appears  that  Lieut.  Steele 
was  on  the  east  side  of  the  street,  and  was  therefore 
nearer  to  the  wagon  than  Quinn,  whose  company  was  to 
the   left  of  Steele's.      (A.,   13;  I,  1S3.)      Besides,   Quinn 


says  he  is  not  positive  whether  it  was  Ward  or  Bonfield 
who  commanded  the  meeting  to  disperse,  ahhough  he 
admits  that  he  has  known  Ward  for  fourteen  years, 
Bonfield  for  eight  or  ten  years.  (A.,  15;  I,  202,  203.) 
This  witness  therefore  confesses  that  he  could  not  dis- 
tinguish the  voice  of  the  officer,  who  admittedly  gave  the 
command  to  disperse  in  a  very  loud  tone  of  voice  (A.,  3; 
I,  46),  who  stood  at  the  time  not  more  than  tzventy  or 
t-ivenly-five  feet  distant  from  him  (A.,  15;  I,  195),  and 
whom  he  had  knoivn  for  fourteen  years  ;  but  still  he 
claims  to  positively  recognize  the  voice  of  Fielden,  who 
was  a  stranger  to  him  and  w us  f fly  feet  distant  from  him 
at  the  time  of  the  alleged  remark. 

Officer  Krueger  says  (A,  17)  he  stood  number  one, 
front  rank  of  the  column,  and  that  when  he  got  up 
-.vitliin  twenty-five  or  thirty  feet  of  the  wagon,  he  heard 
something  like  this:  "  Here  they  are  now,  the  blood- 
"  hounds."  He  does  not  claim  to  have  heard  the  second 
fart  of  the  alleged  remark  ;  he  says  that  he  would  judge 
it  was  the  speaker  on  the  wagon  that  made  the  remark,, 
but  would  not  be  positive. 

Officer  Wessler  (A,  18)  says  he  was  in  Lieut.  Bowler's 
company,  which  was  the  second  of  the  column,  and 
when  he  got  about  as  far  as  the  /Randolph  street  car- 
track  (a  distance  of  about  one  hundred  feef),  he  heard 
the  remark:  "Here  comes  the  blood-hounds,"  but  does 
not  state  who  made  it. 

Lieut.  Bowler  testifies  (A,  22)  that  while  they  were 
marching  to  the  scene,  he  heard  the  words:  "  Here  come 
"  the  blood-hounds,"  said  by  somebody  close  to  the  wagon, 
but  does  not  pretend  that  it  was  said  by  any  one  on  the 
wagon;  while  Officer  Doyle  says  (A,  25)  that  he  was  in 
Bowler's  compan}-  and  heard  the  words:  "Now  is  your 
"time,  now  is  your  time,"  said  by  some  one  looking   like 


Fielder).  But  he  further  says  that  the  man  who  said 
"  Now  is  3'our  time  "  did  not  shoot  in  the  wagon  or  going 
from  it. 

This  is  the  whole  of  the  state's  case  as  to  this  particular 
utterance;  and  it  will  be  observed  that  of  all  the  witnesses 
called  by  the  state,  only  a  few  policemen  pretend  to 
have  heard  those  significant  words;  further,  that  they 
claim  to  have  heard  it  from  all  possible  distances  and  in 
all  possible  forms. 

On  the  other  hand,  neither  Bonfield  nor  Ward,  who 
were  a  little  in  advance  of  the  front  rank  of  the  column, 
claim  to  have  heard  any  such  remark;  while  Freeman, a 
reporter  for  the  Inter  Ocean,  says  that  he  was  at  the  time 
some  eight  or  ten  feet  from  Fielden  (Vol.  K,  47;  A,  107), 
that  he  did  not  hear  that  remark  and  that  he  knows 
of  nothing  to  prevent  his  hearing  it  if  Fielden  had  said  it. 
Hull,  a  reporter  for  the  News,  also  a  witness  for  the 
prosecution,  stated  (Vol.  K,  132;  A,  118)  that  he  heard 
Fielden  remark,  as  he  was  approaching  the  end  of  his 
speech:  "In  conclusion,"  but  that  he  did  not  hear  the  re- 
mark testified  to  b}^  Quinn. 

Besides  these  witnesses  for  the  state,  the  following 
witnesses  introduced  by  the  defendants  testified  positively 
that  no  such  remark  was  made,  and  they  were  all  in  a 
position,  where,  if  such  a  remark  had  been  made  in  a 
tone  of  voice  loud  enough  to  have  been  heard  at  a  dis- 
tance of  from  50  to  100  feet,  they  could  not  but  have 
heard  it,  and  from  the  nature  of  the  remark  it  could  not 
but  have  attracted  their  attention,  namely:  Simonson 
(A.,  178;  L,  69);  Richter  (A.,  187;  L,  183);  Liebel 
(A.,  189;  L,  201);  Taylor  (A.,  191;  L,  229);  Gutscher 
(A.,  198;  L,  302);  Urban  (A.,  202;  L,  350);  Lindinger 
(A.,  215;  L,  474);  Heidekrueger  (A.,  222;  L,  546); 
Holloway  (A.,  230;  M,  61);  Snyder  (A.,  237;  M,  iii); 


Murphy  (A.,  256;  M,  243);  Bach  (A.,  281;  M,  406) ; 
Ingram  (A.,  2S8;  M.  452);  Spies  (A.,  303;  N,  55); 
and  Fielden  himself  (A.,  269;  N,  321). 

Mr.  English,  although  he  was  upon  the  scene  with  in- 
structions to  report  the  most  incendiary  utterances,  and 
although  he  distinctly  heard  the  order  for  dispersion  given 
by  Capt.  Ward,  says  positively  that  he  did  not  hear  the 
remark  testified  to  by  Quinn  and  his  supporters.  (A., 
134;  K,  287.)  It  is  further  to  be  observed,  that  not 
one  of  the  many  witnesses  put  upon  the  stand  by  the  state, 
who  were  reporters  for  the  various  papers,  and  who  tes- 
tified that  the}-  wrote  up  reports  for  publication  in  the 
issue  of  the  following  day,  pretended  to  testify  to  any 
such  remark  as  is  attributed  to  Fielden. 

When  to  this  we  add  the  fact  that  this  particular  re- 
mark is  one  of  the  heirlooms  of  the  detectives  and  the 
police,  having  served  on  duty  on  previous  occasions,  as, 
for  instance,  in  the  trial  of  Thomas  Reynolds,  reported  in 
Morgan's  "  Trials  in  Ireland,"  page  53,  where  in  the  at- 
tempt to  procure  a  conviction  upon  a  charge  of  riot  and 
assault,  precisely  the  same  remark  was  attributed  by  the 
police  swearers  to  the  accused,  we  think  we  are  justified 
in  saying  chat  this  particular  charge  against  Mr.  Fielden 
is  absolutely  exploded,  and  the  respective  statements  of 
the  witnesses  in  that  behalf  are  shown  by  the  whole  evi- 
dence, if  taken  together,  to  be  mere  creations  of  the 
fancy. 

\b.)      T/ie  claim  tliat  Fielden  fired  J  rom  tlie  zuagoii. 

Lieut.  Quinn  swore  with  absolute  positiveness  that 
after  the  order  for  the  dispersing  of  the  meeting  was 
given  by  Capt.  Ward,  Fielden,  while  still  standing  upon 
the  wagon,  drew  a  revoh-er  from  his  hip  pocket  and  fired 


a  shot  in  a  downward  direction,  aimed  at  Capt.  Ward, 
Capt.  Bonfield  and  Lieut.  Steele,  who  at  the  time 
were  grouped  together,  not  more  than  four  to  six 
feet  from  Fielden.  (A.,  14.)  This  testimony  is  en- 
■entirely  unsupported,  no  other  witness  in  the  case  cor- 
roborating him  or  attempting  to]  do  so,  while  his  con- 
tradiction is  so  overwhelming  that  we  have  some  question 
as  to  whether  we  are  justified  inlgoing  into  an  argument 
to  show  that  upon  this  point  he  was  strangely  and  totally 
mistaken.  There  is  no  pretense,  exxept  this  testimony 
-of  Quinn,  that  a  shot  was  fired  by  anybody  upon  or  from 
the  wagon  at  the  time  and  in  the  manner  detailed  by  him, 
but  both  the  witnesses  for  the  prosecution  and  for  the 
defense  agree  that  no  shot  xuas  fired  by  anybody  -prior  to 
the  explosion  of  the  bomb. 

Quinn  in  his  testimony  (A.,  13  to  15)  claims  that 
while  Capt.  Ward  gave  the  order  to  disperse  and  before 
he  finished,  Fielden  said,  ''■  We  are  peaceable,"  and  at  the 
same  time,  while  getting  down  from  the  wagon,  fired  a 
shot  from  the  wagon  in  a  downward  direction  right  into 
Capt.  Ward,  Capt.  Bonfield  and  Lieut.  Steele;  that  upon 
seeing  Fielden  shoot,  he  dropped  his  club,  took,  his  pistol 
and  returned  the  fire,  discharging  his  own  revolver.  Then 
he  looked  back  and  saw  the  explosion  of  the  bomb  in  the 
■shape  of  a  bunch  of  fire-crackers.  Upon  cross-ex- 
.amination,  he  states  that  when  Capt.  Ward,  in  his  com- 
mand, had  got  as  far  as  "  In  the  name  of  the  people 
•of  the  State  of  Illinois,  I  command,  etc.,  to  disperse,  and 
I  command  you  and  you,"  he  heard  the  command — 
■"  Halt!  "  Immediately  he  turned  around  and  repeated 
the  halt  to  his  company,  facing  his  men,  with  his  back 
and  side  to  the  wagon.  He  had  no  time  to  dress  up  his 
Hue  before  the  bomb  exploded.  The  bomb  exploded  two 
or   three    seconds   after   he    repeated   the   order    to    halt. 


When  he  heard  the  halt  Fielden  had  not  started  to  leave 
the  wagon. 

As  to  Quinn's  testimon}-,  we  feel  justified  in  asking- 
the  court  to  observe  its  absolute  and  repeated  self- 
contradictions.  When  did  Quinn  see  Fielden  shoot? 
Before  Quinn  turned  to  repeat  the  halt  and  dress  up 
his  line  Fielden  had  not  started  to  leave  the  wagon^ 
therefore  had  not  shot  yet,  because  Quinn  says  he 
shot  while  getting  off  the  wagon.  After  Quinn  had 
turned,  and  before  he  kad  time  to  dress  up  his  line,  ivhilc 
he  zvas  standing  with  his  hack  and  side  to  the  wagon,  the 
bomb  exploded.  Quinn  could  not  see  Fielden,  while  thus 
turned  to  his  company,  therefore  could  not  see  him  shoot 
before  the  explosion  of  the  bomb.  Again,  Quinn  says 
Fielden  shot  before  Ward  had  finished  his  command  to- 
disperse;  but  Quinn  turned  when  Ward  had  got  so  far 
as  '-you  and  you,"  so  that  only  the  words '•  to  assist '^ 
lacked  to  complete  the  command.  The  two  words 
"  to  assist  "  must  have  been  spoken  within  a  second  after 
Quinn  turned  to  repeat  the  halt  and  dress  up  his  line. 
The  command  must  have  been  finished  before  Quinn 
faced  the  wagon  again.  Now,  if  Fielden  shot  before  the 
command  was  finished,  how,  we  ask  again,  could  Quinn 
see  it?  Again,  Quinn  says,  when  he  turned  to  his  com- 
pany to  repeat  the  halt,  before  he  could  dress  up  his  line, 
the  bomb  exploded;  then  he  turns,  he  sees  Fielden  shoot 
and  thereupon  discharges  his  pistol;  then  he  looks  back 
again  and  sees  the  explosion  in  the  shape  of  a  bunch  of 
fire-crackers.  This  is  a  physical  impossibilitj',  for  the 
bomb  did  not  explode  twice. 

Furthermore,  Capt.  Bonfield,  Capt.  Ward  and  Lieut. 
Steele,  at  whom,  according  to  Quinn,  that  shot  of 
Fielden  was  aimed,  did  not  see  it.  Capt.  Bonfield 
describes    the    movements    of    Fielden     after    the    com- 


mand  to  disperse  was  given  ( \'ol.  I,  24;  A.  2), 
but  does  not  pretend  in  one  word  to  have  seen  Fielden 
shoot.  Capt.  Ward,  who  says  he  was  so  near  to  the 
wagon  he  could  have  touched  it  with  his  club  (Vol. 
I,  434;  A,  37),  says  Fielden  was  facing  him  until  he  had 
finished  his  command.  Then  he  saw  Fielden  get  oiY 
the  truck.  (Vol.  I,  436;  A,  37).  He  does  not  claim  to  have 
seen  Fielden  shoot,  and  says  there  was  no  pistol  firing  of 
any  kind  b}-  anybody  before  the  explosion  of  the  bomb. 
(Vol.  I,  437;  A,  37.)  Lieut.  Steele  says  Fielden  stepped 
off  the  wagon,  turned  to  the  sidewalk,  and  he  lost  sight 
of  him  (Vol.  I,  174,  A  13),  and  that  Fielden  was  on  the 
sidewalk  when  the  bomb  exploded.  (Vol.  I,  180)  No 
pretense  that  he  saw  Fielden  shoot  or  aim  at  him.  Lieut. 
Bowler  says  (A,  22;  Vol.  I,  293-4)  that  he  saw  firing 
close  by  the  wagon  after  the  explosion,  but  not  from  in 
the  wagon;  that  he  saw  Fielden  coming  off  the  wagon 
very  plainly,  yet  saw  no  one  either  in  the  wagon  or  get- 
ting out  of  it  do  any  firing.  Edgar  E.  Owen,  a  reporter 
for  the  Times  and  witness  for  the  prosecution,  says,  he 
noticed  Fielden  jump  off  the  wagon,  but  is  silent  about 
having  seen  him  shoot  at  that  time.  (A.,  125,  Vol.  K,  206.) 
There  is  no  possibility  of  harmonizing  these  conflicting 
statements  of  Quinn;  while  his  whole  story  in  this  respect 
is  demonstrated  by  the  evidence  in  the  record  to  be  ab- 
solutely untrue;  and  whether  that  untruth  be  wilful,  or 
whether  it  be  the  result  of  some  mental  aberration,  the 
entire  testimony  of  this  witness  is  in  our  judgment  thereby 
discredited. 

(  c. )     The  claim  that  Fielden  fired  from  behind  the  luag  0  n . 

It  was  next  attempted  to  be  shown  in  the  attack, 
upon  Mr.  Fielden  that  he  fired  at  least  two  shots  after  the 
explosion  of  the  bomb  from   a    position    on    the    sidewalk. 


behind  the  wagon.  The  testimony  upon  this  subject  pres- 
ented by  the  state  was  in  brief  as  follows: 

Officer  Krueger  testified  that  Fielden  stepped  just  one 
step  north  of  the  south  end  of  the  wagon,  took  cover  be- 
hind it  (Vol.  I,  245;  A,  17)  and  then  fired  two  shots 
directly  at  the  column  of  police;  then  he  sazi'  Fielden  in 
the  crowd  and  shot  at  him.      (  A.,  17;  I,  234,  235. ) 

Officer  Wessler  says  that  after  the  explosion  of  the 
bomb  he  drew  his  revolver  and  ran  north  on  the  sidewalk 
next  to  Crane's  building,  probabl}'  twenty  or  thirty  feet 
north  of  the  alley.  There  he  shot  twice,  then  he  heard 
the  order,  "  Fall  in,"  in  his  rear.  He  ran  back  and  saw 
Fielden,  behind  the  wagon,  get  up  and  get  down  twice 
and  shoot  twice  into  the  police.  Then  Wessler  shot  him 
and  Fielden  fell  under  the  wagon.  [\o\.  I,  251,  252; 
A,  18.)  It  maj'  have  been  two  minutes  after  the  explosion 
of  the  bomb  that  Wessler  started  on  his  charge  to  the 
north,  together  with  Officer  Foley.      (\'ol.  I,  260;  A,  19.) 

Officer  Foley  testified  that  he  went  north  on  the  side- 
walk after  the  explosion  of  the  bomb,  and  while  search- 
ing some  fellows  near  the  steps  of  Crane  Bros.'  building, 
saw  Officer  Wessler  slioot  at  a  man  -who  -was  lying  tinder 
the  body  of  the  wagon,  between  the  fore  and  hind  wheels. 
Going  by  the  wagon,  Fole}'  picked  up  a  revolver  that 
was  lying  on  the  sidewalk.  It  was  a  five-chamber 
Harrington.  Three  chambers  were  empty,  two  cartridges 
remained.      (Vol.  I,  268  to  275;  A,  19,  20.) 

Officer  Baumann  swears  he  saw  Fielden  shoot  once 
from  east  to  west,  while  standing  on  the  sidewalk.  He 
admits  that  he  saw  Fielden  that  night  for  the  first  time, 
that  he  did  not  see  him  since  then  until  he  testified,  and 
that  he  asked  some  of  the  officers  who  that  man  was  tliat 
fired  the  shot,  and  they  told  him  it  was  Fielden.  [Vo\. 
I,  296,  302,303;  A,  22,  23.) 


IS 

Officer  Hanley  swears  he  saw  Fielden  fire  one  shot 
and  then  run  zvilh  the  crozvd  tozrani  the  alley.  (Vol. 
T,  307,  308;  A,  23.) 

Officer  Spierling  (Vol.  L,  341  to  343;  A,  26)  swears 
that  after  the  bomb  exploded  he  saw  Fielden  get  off 
the  wagon  and  fire  one  shot;  Fielden  was  standing 
behind  the  wagon,  on  the  sidewalk.  He  shot  west; 
Spierling  thinks  it  was  a  little  before  the  explosion  of  the 
bomb  that  Fielden  shot.  But  upon  cross-examination,  he 
says  that  the  man  he  identifies  as  Fielden,  and  who  fired 
this  shot,  got  off  the  ivagoii  to  the  sidezualk,  betiveen  the 
tzvo  wheels  of  the  zvaovii.  It  is  evident,  therefore,  that 
Mr.  Spierling  did  not  see  Mr.  Fielden  at  all  fire  any  shot; 
for  the  testimon}'  is  without  contradiction  that  Fielden 
got  off  the  wagon  at  the  south  end,  stepping  down  to  the 
street  next  to  Ward  and  Bonfield,  and  from  there  stepping 
upon  the  sidewalk. 

This  is  the  entire  testimony  offered  by  the  state  in 
support  of  this  charge.  It  is  shown  by  the  overwhelming 
preponderance  of  the  testimony  to  be  untrue. 

We  call  attention  first  to  the  absolutely  contradictor)' 
character  of  the  testimony  of  these  witnesses  introduced 
by  the  state.  Krueger  swears  that  Fielden  fired  twice 
and  then  ran  away  with  the  crowd,  and  that  he 
(Krueger)  shot  Fielden  as  he  ran,  staggering  him,  but 
not  causing  him  to  fall  (A,  17;  Vol.  I,  235),  and 
Hanley  swears  that  he  saw  Fielden  fire  one  shot,  then 
run  with  the  crowd  toward  the  alley;  but  Wessler  swears 
that  after  his  excursion  up  the  street,  firing  upon  the 
crowd,  on  his  return  to  the  wagon,  he  found  Fielden  still 
there,  shooting  at  the  police,  and  thereupon,  from  immedi- 
ately behind  him,  he  shot  him,  and  Fielden  fell  under  the 
wagon.  If  Fielden  ran  towards  the  alley,  as  claimed  by 
Krueger  and  Hanley,  which  was  in  a  direction  south  from 


i6 

the  wagon,  how  is  it  possible  that  he  should  at  the  same 
time  have  stepped  north  between  the  side  wheels  of  the 
wagon?  And  how  can  j-ou  reconcile  Wessler's  testimony, 
that  he  shot  Fielden  and  that  Fielden  fell  under  the 
wagon,  with  the  positive  statement  of  Foley,  that  Wessler 
shot  at  a  man  who  was  already  lying  under  the  body  of 
the  wagon  between  the  wheels?  Of  course  these  stories 
cannot  all  be  irue  and  apply  to  the  one  man,  Samuel 
Fielden.  Their  contradictions  are  absolutely  irrecon- 
cilable. But  we  go  beyond  this  to  call  attention  to  posi- 
tive testimony,  which  absolutely  refutes  this  story. 

Of  the  witnesses  for  the  state  we  desire  to  call  particu- 
lar attention  upon  this  point  to  the  testimony  of  William 
H.  Freeman,  a  reporter  for  the  Inter  Ocean.  He  says, 
(A,  io6,  107;  K,  41,  42,  48-50)  that  he  stood  on  the 
sidewalk  between  the  speaker's  wagon  and  Crane  Bros.' 
building,  within  three  or  four  feet  of  the  wagon,  and  when 
the  pistol  firing  commenced,  crouched  down  behind  the 
wagon;  that  there  was  no  shooting  between  him  and  the 
■wagon,  although  two  police  officers  stood  by  the  wagon 
with  their  pistols  pointed  dangerously  close  at  him;  that 
he  did  not  see  Fielden  shoot  as  he  Jumped  down  from  the 
wagon,  nor  sec  him  shoot  at  all.  That  after  remaining  a 
moment  or  two  in  his  position  between  the  wagon  and  the 
building,  he  went  toward  the  alley  and  went  into  it,  there 
being  no  firing  from  the  alley.  He  says  positively  that  he 
does  not  think  that  any  one  was  between  himself  and  the 
wagon  firing  or  anything  of  that  kind. 

William  Snyder  (A,  236),  testifies  that  he  was  on 
the  wagon  while  Fielden  was  speaking,  and  when  the  or- 
der to  disperse  was  given;  that  he  then  stepped  down 
and  called  Fielden  to  get  down,  who  immediately  assented, 
and  that  he  assisted  Fielden  in  dismounting.  That  the 
explosion  of    the   bomb  came   while  they  were  in  the  act 


of  getting  off  the  wagon;  that  Fielden  did  nol  shout 
tuhen  getting  off  the  zvagon;  had  he  clone  so  he  would 
have  shot  Snyder;  that  Fielden  had  no  revolver,  and 
did  not  fire  at  the  -police  officers  or  at  anybody  else; 
that  he  remained  with  Fielden,  and  with  his  hand  upon 
him,  until  they  both  reached  the  mouth  of  the  alley,  when 
they  separated,  Sn3'der  making  his  escape  into  the 
alley. 

Frank  Stenner  (A.,  196)  says  that  when  the  shooting 
commenced  he  was  on  the  east  side  of  tlie  wagon,  close 
to  the  Crane  Brothers  building;  that  he  was  arrested 
himself  by  Foley  while  lying  down  on  the  steps  of  the 
Crane  Brothers  building  to  avoid  being  shot.  That  Foley 
picked  lip  a  revolver  about  fifty  feet  south  of  the  vjagon, 
as  he  was  leading  him  to  the  station,  after  the  firing 
was  through;  that  there  was  no  shot  fired  from  the 
wagon  before  the  bomb  exploded;  that  he  was  looking 
at  Fielden  when  he  dismounted  from  the  wagon  and  did 
not  see  him  shoot,  and  that  he  did  not  see  Fielden  or 
anybody  else  stand  behind  the  zvagon  and  fire. 

Dr.  James  D.  Taylor  (A.,  190)  testified  that  he  stood 
but  a  few  feet  distant  from  the  wagon;  saw  Fielden  on 
the  wagon;  remained  in  his  position  until  after  the  ex- 
plosion of  the  bomb  and  the  pistol  firing,  and  that  he  did 
not  see  Fielden  draw  a  revolver  and  shoot  in  the  direction 
of  the  police,  or  use  a  pistol  on  or  off  the  wagon;  that 
he  watched  him  as  long  as  he  could  see  him.  (A.  191, 
K  230,  231.) 

Conrad  Messer  testifies  (A.,  20S)  that  he  stood  by 
the  south-east  corner  of  the  wagon  at  the  time  the  police 
arrived;  that  at  the  time  of  the  explosion  of  the  bomb 
Fielden  was  down  off  the  wagon  near  the  sidewalk;  that 
he  saw  Fielden  during  all  that  time,  and  that  Fielden  had 
no  pistol  in  his  hand,  and  he  did  not  see  him  fire  one  shot; 


i8 

that  Fielden  stepped  on  to  the  sidewalk,  and  after  that 
the  witness  saw  him  no  more. 

John  HoUoway  (A.,  229,  230)  testifies  that  he  stood  dur- 
ing the  speaking  and  the  firing  that  followed,  near  the 
lamp-post  on  the  southeast  corner  of  the  alley  and  the 
street;  that  he  saw  no  firing  coming  from  the  direction  of 
the  wagon,  and  did  not  see  Fielden  shoo'. 

Sleeper  T.  Ingram  testifies  (A.,  287,  288)  that  he 
stood  on  the  sidewalk  near  the  steps  of  the  Crane  Broth- 
ers building,  just  east  of  the  wagon;  that  he  saw  Fielden 
when  the  police  came  up  and  when  the  bomb  exploded; 
that  he  did  not  sec  Fielden  have  any  revolver  or  fire  any 
shot. 

Mr.  Fielden's  own  testimony  is  positive,  unequivocal 
and  clear.  He  says  he  never  carried  a  revolver  in  his 
life,  did  not  have  one  thit  night,  and  did  not  fire  on  that 
occasion  at  all;  never  fired  at  any  person  in  his  life;  that 
he  did  not,  after  leaving  the  wagon,  step  back  between 
the  wheels  of  the  wagon  and  fire  from  behind  the  wagon; 
did  not  stay  there  at  all  (A.,  268;  M,  319);  that  he  got 
down  from  the  south  end  of  the  wagon  after  the  order 
to  the  meeting  to  disperse  was  given  by  Capt.  Ward, 
and  started  in  a  slightly  south-east  direction  (A.,  267); 
that  just  as  he  got  upon  the  sidewalk  the  explosion  of 
the  bomb  came,  and  he  rushed  with  the  crowd  trying  to 
get  behind  some  protection,  unavailingl)-,  and  made  a 
dash  for  the  north-east  corner  of  Randolph  and  Desplaines, 
turned  the  corner  and  ran  until  he  got  to  Jefferson  street. 
Just  after  the  explosion  of  the  bomb  he  was  struck  with 
a  ball  and  wounded  above  the  knee;  that  his  whole 
course  was  from  the  wagon  south,  without  stopping 
except  for  an   instant  when   startled    by  the   explosion. 

Of  course,  in  the  confusion  following  such  an  event 
as  the  explosion  of  this  bomb,  and  the  immediate  open- 


19 

ing  of  fire  by  the  police,  particularly  in  the  night-time 
with  no  light  except  a  single  street  lamp  upon  the  cor- 
ner of  the  alley  (and  some  of  the  witnesses  testified  that 
that  was  extinguished  about  the  moment  of  the  explosion ) , 
it  was  not  to  be  expected  that  to  anj'  great  extent  the 
people  in  the  crowd  would  be  watching  each  other's 
movements;  on  the  contrary,  they  were  engaged  in  look- 
ing out  each  for  his  own  safety.  It  happened  fortunately, 
however,  that  owing  to  the  position  which  Mr.  Fielden 
occupied  he  was  subject  to  more  observation  than  would 
otherwise  have  been  fixed  upon  him;  and  that  from  the 
lips  of  these  witnesses  we  are  enabled  to  disprove  this 
story  as  to  his  stepping  behind  the  wagon  and  opening 
fire  upon  the  police. 

The  attack  made  by  the  police  officers  upon  Mr. 
Fielden,  attempting  to  implicate  him  by  describing  his 
alleged  personal  conduct  that  evening,  in  our  judgment 
utterly  fails.  On  this  point  we  think  it  not  improper  to 
call  attention  to  the  fact  that  when  an  effort  was  made 
to  show  by  the  testimony  of  Mr.  Fielden,  that  he  was 
present  at  the  examination  of  the  various  officers,  upon 
the  coroner's  inquest,  and  that  not  a  word  was  there  testi- 
fied as  to  his  having  fired  at  any  time  that  night,  the 
going  into  that  subject  was  objected  to  by  the  state's 
attorney,  and  the  proposed  testimony  was  excluded  by 
the  court  over  the  exception  of  defendants  (A.,  277); 
while  Mr.  Knox,  a  reporter  for  the  News,  put  upon  the 
stand  for  the  prosecution,  testifying  of  an  interview  with 
Fielden  on  the  night  of  the  5th  of  Ma}',  in  the  pres- 
ence of  one  or  more  of  the  police  officers,  after  the  cor- 
oner's inquest  had  recommended  that  Mr.  Fielden  be 
held  for  the  murder  of  Degan,  sa3-s  that  he  does  twt  tliink 
anything  was  asked  of  Fielden  as  to  his  having  fired  any 
shots  at  the  Haymarl<et ;   that   he  did  not  know  of  such  a 


charge  at  the  time,  and  had  never  heard  of  such  a  claim 
advanced  up  to  that  time  by  anybody  (A.,  89;  Vol.  J, 
333,  334);  while  Hugh  Hume,  a  reporter  for  the 
Inter  Ocean,  also  testifying  on  behalf  of  the  people 
of  an  interview  had  by  him  near  midnight  of  that 
s  ime  May  5th,  with  Fielden,  says  that  he  don't  remem- 
ber asking  Fielden  anything  about  firing,  or  that  any 
question  of  that  sort  was  suggested  by  any  one.  We 
think  we  are  warranted,  in  view  of  these  statements,  in 
asserting  that  it  sufficiently  appears  from  the  evidence  in 
this  record  that  the  charge  that  Samuel  Fielden  fired  any 
s'lots  on  the  night  of  May  4th  was  never  advanced  by 
any  human  being  until,  certainly,  after  the  5th  day  of 
May,  and  after  the  investigation  by  the  coroner's  jurv  of 
the  facts  connected  with  the  death  of  Officer  Degan. 

As  to  Mr.  Fielden,  therefore,  we  affirm  upon  this  rec- 
ord that  the  testimony  shows  that  he  had  nothing  what- 
ever to  do  with  the  calling  of  the  Haymarket  meeting! 
and  no  notice  or  knowledge  that  such  a  meeting  was  to 
be  held  until  it  was  already  in  progress.  That  his  pres- 
ence at  the  Haymarket  and  his  speaking  there  resulted 
simply  from  the  request  for  speakers  sent  to  the  meeting 
of  the  American  group;  that  he  had  no  knowledge  of  the 
throwing  of  a  bomb  on  that  night,  nor  did  he  contemplate 
any  violence  whatever  as  likely  to  occur;  that  he  had  no 
knowledge  of  the  bomb-thrower,  nor  ever  advised  or 
planned  for  the  throwing  of  that  bomb;  that  in  fact  the 
throwing  of  that  bomb  was  as  much  a  surprise  to  him 
as  to  an}'  other  person. 

Albert  R.  Parsons. 

The  testimonj-  shows,  without  any  contradiction,  that 
on  Sunday.  May  2,  1886,  Albert  R.  Parsons  was 
in   the  city   of    Cincinnati,   Ohio,   and   came    back    from 


there  to  Chicago  on  the  morning  of  Tuesday,  May  4th 
(A.,  313;  N,  109);  that  he  caused  a  notice  calling  for 
a  meeting  of  the  American  group  at  107  5th  avenue 
on  the  evening  of  Ma}'  4th,  to  be  inserted  in  the  Daily 
News  of  that  afternoon.  That  in  the  evening  he  left  his 
house  in  company  with  Iiis  zvife,  Mrs.  Holmes,  a  lady 
friend,  and  his  two  little  children;  that  on  their  way  down 
they  walked  as  far  as  the  corner  of  Randolph  and  Hal- 
sted  streets,  where  he  met  two  reporters,  Mr.  Heineman 
and  Mr.  Owen.  There  Mr.  Parsons  and  his  part}-  took  a 
car  and  rode  directly  up  to  107  5th  avenue,  where  they 
arrived  about  half  oast  8  o'clock  and  remained  about  half 
an  hour.  Concerning  this  meeting  at  the  corner  of  Halsted 
and  Randolph  streets,  Mr.  Owen  (a  witness  for  the  state) 
testified  (A.,  124;  K,  200,  201):  "I  saw  Parsons  at 
"  the  corner  of  Halsted  and  Randolph  streets  shortly  be- 
"  fore  8  o'clock.  I  asked  him  where  the  meeting  was 
"  to  be  held;  he  said  he  didn't  hnozv  anything  about  the 
"  meeting.  I  asked  him  whether  he  was  going  to  speak. 
"  He  said,  '  jVo,  lie  was  going  over  to  tlie  south  side.' 
"  Mrs.  Parsons  and  some  children  came  up  just  then,  and 
"  Parsons  stopped  an  Indiana  street  car,  slapped  me  fa- 
"  miliarly  upon  the  back,  and  asked  me  if  I  was  armed, 
"  and  I  said  '  No;  have  you  any  dynamite  about  you?'  He 
"  laughed,  and  Mrs.  Parsons  said, '  He  is  a  very  danger- 
*'  ous  looking  man,  isn't  he?  '  and  they  got  on  the  car  and 
"  went  east.  I  believe  Mr.  Heineman  was  with  me." 
Mr.  Heineman  also  testified  as  to  that  meeting  (A.,  126; 
K,  233). 

Pursuant  to  the  request  for  speakers  mentioned  above, 
Parsons,  with  others,  went  to  the  Haymarket  meeting;  he 
reached  the  same  sometime  after  9  o'clock,  when  Spies  was 
speaking,  and  directly  afterward  he  himself  spoke,  his 
speech  occupying  from  three-quarters  of  an  hour  toan  hour. 


It  is  concurred  in  by  all  the  witnesses  who  testify'  in 
reference  to  Parsons'  speech,  that  it  was  largely  statistical 
in  its  nature,  and  a  review  of  the  disturbed  condition  of 
the  labor  world;  and  it  is  conceded  by  all  that  when,  in 
the  course  of  his  remarks,  he  mentioned  the  name  of  Jay 
Gould,  in  connection  with  the  south-western  railway 
troubles,  and  some  one  in  his  audience  proposed  the  hanging 
of  the  railway  magnate,  Parsons  immediatelj'replied  dep- 
recating such  utterance, saying  in  effect:  No!  this  is  not  a 
coiifict  bet-iveen  individuals,  but  for  a  change  of  system, 
and  socialism  desires  to  remove  the  causes  which  produced 
the  pauper  and  the  millionaire,  but  does  not  aim  at  the  life 
of  the  individual.  That  in  that  connection  he  made  use  of 
the  figure  that  if  Jay  Gould  were  killed,  another  or  a 
hundred  others  would  come  up  in  his  place  like  a  Jack  in 
a  box;  and  that  he  also  used  the  figure  that  to  kill  the  in- 
dividual millionaire  or  capitalist  would  be  like  killing  a 
flea  upon  a  dog,  whereas  the  purpose  of  socialism  was 
the  destruction  of  the  dog  himself — the  change  of  the 
present  system.  (A.,  320;  N,  136.)  This  utterance,  or 
the  substance  of  it,  is  also  testified  to  by  the  following 
witnesses:  Simonson  (A.,  177;  L,  65),  Ferguson  (A., 
182;  L,  130,  131),  Gleason  (A.,  203;  L,  361),  Snyder 
(A.,  236;  M,  109),  Bach  (A.,  281;  M,  410),  Freeman 
(A.,  105;   K,  40). 

Some  of  the  witnesses  for  the  state  testified  thdt  at 
some  point  in  his  discourse  he  used  the  expression,  "  To 
"arms!  to  arms!  to  arms!"  This  is  the  only  incendiary 
utterance  claimed  to  have  been  made  use  of  by  him. 
Upon  this  point  Mr.  English's  testimony,  based  upon 
his  notes  taken  at  the  time,  is  substantially  as  follows 
(A.,  131;  K.  281):  "It  behooves  you,  as  you  love 
"  your  wife  and  children,  if  you  do  not  want  to  see  thjm 
"  perish  with  hunger,  killed,  or  cut  down  like  dogs  on  the 


23 

"  street,  A:nericans,  in  ihe  interest  of  your  liberty  and 
"  your  independence,  to  arm,  to  arm  yourselves  (ap- 
"  plause,  and  cries  of  '  We  will  do  it;  we  are  ready  now  '). 
"  You  are  not."  And  Mr.  English  says  positively  in  this 
connection  that  when  Parsons  said  "  to  arm  "  he  said  it 
in  his  ordinary  tone  of  voice.  He  says  further,  that  this 
expression  shortly  followed  an  utterance  of  Parsons  in  the 
following  language:  "  /«;«  not  here  for  the  purpose  of  in- 
"  citing  anybody,  but  to  speak  out,  to  tell  the  facts  as  they 
"  exist,  even  though  it  shill  cost  mt  my  life  before  morn- 

"  ing-" 

It  was  a  very  natural  mistake  for  persons  in  the  audi- 
ence, not  listening  closely,  and  not  taking  notes  of  the 
speech,  to  have  received  the  impression  that  Parsons  said 
"  To  arms!  to  arms!  to  arms!"  But  a  mistake  it  clearly 
is.  For  the  short-hand  notes  of  Mr.  English  are  surely 
more  reliable  than  the  testimony  of  the  other  witnesses 
testifying  merely  from  recollection.  It  will  further  be  ob- 
served that  Mr.  English's  entire  testimony  as  to  Parsons' 
speech  occupies  but  a  little  more  than  one  page  of  the  re- 
cord, and  the  evidence  shows  that  he  took  but  very  little  of 
it  out  of  matter  which  occupied  nearly  an  hour  in  its  deliv- 
ery ;  which  is  e.xplained,  as  we  understand  it,  by  the  fact  that 
Mr.  English  was  under  instructions  to  report  only  "  the 
"  most  inflammatory  utterances;"  and  that  in  point  of  fact 
he  found  in  Mr.  Parsons'  speech  scarcely  anything  to 
report  under  these  instructions.  Mr.  Parsons,  upon 
the  witness  stand,  gave  in  detail,  as  near  as  he 
could  repeat  it,  his  speech  at  the  Hay  market  (A.,  315 
to  320;  N.,  118  to  136),  and  we  invite  the  attention 
of  the  court  to  that  speech  as  there  detailed,  in  con- 
nection with  the  testimony  of  Mr.  EngHsh  and  also  the 
testimony  of  the  other  witnesses  as  to  the  character  of  his 
speech,    in    support    of     our    assertion     that    it    was     an 


24 

Unusuall}'  moderate  utterance  for  such  an  occasion.  Cer- 
tainh',  there  was  nothing  in  that  speech  which  in  the  re- 
motest degree  incited  immediate  violence,  or  indicated  in 
any  manner  that  the  speaker  contemplated  any  immediate 
outbreak  upon  the  part  of  his  audience  or  an}-  portion 
of  it.  Mayor  Harrison,  who  heard  Parsons'  speech,  and 
attended  the  meeting  for  the  purpose  of  dispersing  it,  if 
anything  should  occur  to  require  interference,  left  the 
meeting  at  the  end  of  that  speech,  and  told  Capt.  Bon- 
held  at  the  station  that  "  nothing  had  occurred  yet  or 
"  looked  like/y  to  occur  to  require  interference,  and  that 
"  he  had  better  issue  orders  to  his  reserves  at  the  other 
"stations  to  go  home";  whereupon  Mr.  Harrison  him- 
self went  home.      (A.,  174,  175;  L.,  29-31,  47.) 

After  Parsons,  Mr.  Fielden  spoke  in  all  about  twenty 
minutes.  After  Mr.  Fielden  had  been  speaking  some  ten 
minutes  or  so,  it  is  admitted  by  all  the  witnesses  that  a 
cloud  accompanied  by  a  very  cold  wind  swept  up  in  the 
northern  sky,  threatening  rain;  and  that  thereupon  Par- 
sons interrupted  Fielden  and  sugg-estcd  an  adjournment 
of  the  meeting  to  Zepf's  Hall,  a  hall  in  a  building 
situate  on  the  north-east  corner  of  Lake  and  Desplaines 
streets,  and  consequently  about  a  half  a  block  from  the 
location  of  the  Haymarket  meeting.  To  this  somebody  in 
the  crowd  responded  that  the  hall  was  occupied  by  a  meet- 
ing of  the  furniture-workers'  union,  and  Fielden  suggested 
lh:H  he  would  he  through  in  a  fezv  minutes,  and  then  thev 
cofild  all  go  home;  and  Fielden  proceeded  with  his  re- 
marks. (A.,  314;  N,  113.)  Besides  the  testimony  of 
Mr.  Parsons,  this  fact  is  further  established  by  a  large 
number  of  witnesses,  both  for  the  State  and  the  defend- 
ants, among  whom  we  will  mention  the  following:  Free- 
man (A.,  108;  K,  51,  52),  Heineman  (A.,  127;  K,  246), 
English  (A.,  132.  133;  K,  282),  Simonson  (A.,  17S;    L, 


•66,  67),  Richter  (A.,  187;  L,  1S4),  Urban  (A.,  201;  L, 
343),  Ingram  (A.,  287;  M,  447).  But  it  is  established  vvith- 
■out  contradiction,  that  a  very  large  portion  of  the  audience, 
■fully  one-half,  as  estimated  by  substantially  all  of  the  wit- 
nesses, and  more  than  that  as  estimated  by  many,  scat- 
tered upon  Parsons'  motion  and  Fielden's  suggestion,  and 
that  Mr.  Parsons  himself  went  from  the  speakers'  wagon 
to  a  wagon  located  a  few  feet  north  of  it,  in  which  sat  his 
■wife  and  Mrs.  Holmes,  who  had  accompanied  him  to  the 
Haymarket;  and  that  he  then  proposed  to  them  that 
ihey  should  all  go  to  Zepfs  Hall,  which  they  accordiiioiy 
did.  It  is  proved  incontestably  also  that  at  the  time  of  the 
-explosion  of  the  bomb.  Parsons,  together  with  his  wife, 
Mrs.  Holmes,  and  others,  was  in  Zepfs  saloon,  and  not  at 
the  Haymarket  meeting.  This  is  substantiated  by  the 
testimony  of  the  following  witnesses,  viz.:  Michael  D. 
Malkoft"  (A.,  224),  Thomas  Brown  (A.,  238;  M,  125), 
Otto  Wandray  (A.,  248;  M,  192),  Lizzie  May  Holmes 
{A.,  261,  M,  2S4,  285),  S.  I.  Ingram  (A.,  287;  Vol.  M, 
.448);  besides  the  testimony  of  Mr.  Parsons  himself 
{A.,  314,  315;  N,  114-116).  No  effort  was  made  to  meet 
or  refute  this  testimony,  or  to  show,  by  a  single  witness, 
that  Mr.  Parsons  was  at  the  Haymarket  at  the  time  of  the 
explosion  of  the  bomb.  A  review  of  the  evidence  touching 
Parsons'  attendance,  presence  and  utterances  at  the  Hay- 
/market  meeting,  accompanied,  as  he  was,  by  his  wife  and 
Mrs.  Holmes,  proposing  an  adjournment  of  the  meeting 
before  the  police  had  moved  upon  them,  and  himself 
thereupon  leaving  the  theater  of  action,  must  satisfy  any 
irational  mind  that  Mr.  Parsons  had  no  idea  that  any  vio- 
lence was  contemplated,  proposed,  arranged  for,  or  likelv 
ito  occur  at  the  Haymarket  meeting,  of  which  his  first 
Tiotice  was  received  from  Mr.  Owen,  about  8  o'clock  that 
evening,  as  appears  from  the  testimony  of  that  gentleman. 


26 

It  is  not,  therefore,  to  be  wondered  at  that  when  the 
trial  came  on,  involving  Mr.  Parsons  in  a  charge  of  par- 
ticipation in  the  murder  of  Mathias  J.  Degan,  he  should 
have  voluntarily  come  to  the  bar  of  the  court,  as  he  did,. 
and  presented  himself  for  trial,  strong  in  his  consciousness- 
of  innocence,  and  convinced  of  his  power  to  successfully 
meet  any  charge  in  that  behalf  that  might  be  brought 
against  him.  And  we  respectfully  submit  that  no  jury 
dispassionate,  unprejudiced  and  governed  by  the  testi- 
mony in  the  case,  could  rationally  have  reached  the  con- 
clusion which  was  reached  in  this  case;-  and  that  such 
conclusion  is  explicable  alone  by  the  fact  that  he  was- 
compelled  to  submit  his  cause,  under  the  rulings  of  the 
trial  court,  to  a  jury  who  had  prejudged  him,  and  wha 
forced  the  result  into  conformity  with  the  opinion  with 
which  they  entered  the  jury  box. 

Michael  Schwab. 

The  incriminatory  evidence  adduced  by  the  state- 
against  Michael  Schwab,  in  connection  with  the  tragedy 
of  the  Haymarket,  is  alone  that  of  M.  M.  Thompson.  No 
other  witness  on  behalf  of  the  state  attempts  to  connect 
Schwab  with  the  throwing  of  the  bomb.  It  is,  therefore, 
proper,  in  this  connection,  to  consider  critically  the  testi- 
mony of  Mr.  Thompson.  (A.,  134-137.)  Thompson's- 
story  is,  that  on  the  evening  of  May  z|th,  he  attended  at 
Mie  Haymarket,  reaching  the  corner  of  Desplaines  and 
Randolph  streets,  about  twenty-five  minutes  of  8.  That 
he  there  met  Mr.  Brazleton,  a  reporter  of  the  Inter  Ocean, 
and  talked  with  him  about  fifteen  minutes;  then  asked  the 
time,  and  Brazleton  replied  it  was  then  ten  minutes  of  8;. 
that  while  talking  with  Brazleton,  Brazleton  pointed  out 
Schwab,  whom   Thompson    had    never  seen   before,  who- 


27 

was  rushing  along  Desplaines  street,  apparently  in  a 
great  hurry.  That  Thompson  then  walked  to  the  east 
side  of  Desplaines  street,  up  Desplaines,  near  to  the  cor- 
ner of  Lake,  and  back  again  to  the  alley  by  Crane  Bros.', 
standing  just  by  the  alley.  That  he  saw  Spies  get  up  on 
the  wagon,  and  heard  him  ask  for  Parsons,  who  did  not 
respond,  and  that  Spies  then  got  down,  and  Schwab  and 
Spies  walked  into  the  alley,  south  of  Crane  Bros.' 
(K,  288.)  That  when  he  saw  Spies  and  Schwab  go  into 
thti  aWey,  l/ierc  zi'as  a  crozvd  there.  (K,  291.)  Thomp- 
son was  standing  within  three  feet  north  of  the  alley,  up 
against  the  building.  (K,  292.)  From  this  position  he 
heard  a  conversation  between  Schwab  and  Spies,  in  the 
alley.  He  admits  that  he  had  never  before  seen  either  of 
these  parties,  and  had  never  heard  either  of  thein  speak, 
save  that  he  heard  Spies  inquire  from  the  wagon  for 
Parsons.  (K,  295.)  He  states  that  he  could  not  see 
doiun  the  alley,  unless  he  turned  his  face  to  it,  and  did  not 
look  into  the  alley  to  see  -who  were  the  parties  holding 
the  conversation  testified  of  (K,  292,  293),  but  that  he 
heard  in  a  conversation  between  them,  the  word  "pistols" 
and  the  word  "police,"  the  latter  word  twice;  that  the 
first  remark  he  heard  was  about  a  minute  and  a  half  after 
Spies  and  Schwab  went  into  the  alley  and  out  of  sight. 
(K,  295.)  That  he  drew  up  within  a  foot  of  the  alley, 
when  Spies  said:  "  Do  you  think  one  is  enough,  or  hadn't 
"  we  better  go  and  get  more?"  (K,  294.)  To  which  he 
heard  no  response.  That  Spies  and  Schwab  then  came 
out  of  the  alley,  walked  south  on  Desplaines  street  to 
Randolph,  west  on  the  north  side  of  Randolph  to  Halsted, 
crossed  Halsted  diagonally  to  the  south-west  corner  of 
the  street  intersection,  remained  there  about  three  min- 
utes; then  left  the  crowd  and  came  back;  that  on  the 
way  back,  as  the  pair  neared   Union  street,  he  heard  the 


2S 


word  "  police "  again.  At  that  moment  he  passed  the 
pair,  and  Schwab  said:  "Now,  if  they  come,  we  will 
"  give  it  to  them,"  to  which  Spies  replied  that  he  thought 
they  were  afraid  to  bother  with  them.  On  the  north- 
west corner  of  Desplaines  and  Randolph  he  halted  and 
they  passed  him,  going  diagonally  across  Desplaines 
street  in  a  north-eastern  direction,  and  striking  the  side- 
walk about  fifteen  or  twenty  feet  south  of  the  alley. 
Then  he  followed  them  across  Desplaines  street,  but  a 
little  more  to  the  south,  striking  the  sidewalk  some  ten 
or  fifteen  feet  south  of  them,  when  a  third  part\^  stepped 
from  the  wall  of  the  building  towards  the  center  of  the 
sidewalk,  and  that  the  group  of  three  then  stood.  Spies 
facing  south  and  directly  toivnrd  Thompson,  Schwab 
facing  north,  and  the  third  man  facing  zuest.  (K,  305- 
310.)  The  group  appeared  to  get  in  a  huddle, 
and  there  was  something  passed  between  Spies  and  the 
third  man — he  could  not  tell  what;  that  the  third  man 
took  this  something  and  put  it  in  his  right-hand  coat 
pocket.  That  they  then  went  to  the  wagon.  Spies  got 
up  and  the  third  man  mounted  after  him.  That  he  no- 
ticed this  third  man  afterwards  sitting  on  the  wagon,  and 
that  he  kept  his  hand  in  his  pocket.  He  attempted  to 
identify  this  man  by  means  of  a  photograph  of  Schnau- 
belt,  shown  to  him,  and  said  that  he  thought  that  was  the 
picture  of  the  third  man.  That  he  remained  on  the  Hay- 
market  until  Mr.  Fielden  commenced  to  speak  and  then 
left.      (K,  289,  290.) 

Thompson  admitted  that  he  did  not  understand  Ger man, 
and  said  that  the  conversation  which  he  heard  was  carried 
on  in  English.  (K,  293,  301.)  He  could  not  give  the 
connection  of  the  conversation  which  he  related. 

If  any  such  occurrence  between  anybod}'  took  place 
as  he  describes,  then    it   is   evident   from   his  whole  testi- 


29 

mony  that  it  must  have  been  somewhere  between  8  and 
half-past  8  o'clock. 

There  is  incontestable  evidence  in  this  record,  we 
undertake  to  say,  which  demonstrates  conclusively  the 
utter  untruth  of  this  testimon}',  as  attempted  to  be  ap- 
plied to  Michael  Schwab  and  August  Spies;  for  Michael 
Schwab  was  not  walking  around  the  Haymarket  at  the 
time  alleged,  and  did  not  see  Spies  there  at  all,  nor  take 
with  him  the  journey  detailed,  nor  did  he  or  Spies  have 
the  conversation  either  with  one  another  or  with  anybody 
else.  To  this  testimony  we  now  beg  to  call  the  atten- 
tion of  the  court  in  detail. 


(«.)      Schwab'' s  movements. 

Schwab's  account  of  himself,  which  is  in  every  particular 
confirmed  by  unimpeachable  testimony  to  which  we  shall 
call  attention  later  on,  is  as  follows  (A.,  294-96): 

That,  on  the  evening  of  May  4th,  he  left  his  home,  51 
Florimond  street,  at  twenty  minutes  to  8  o'clock,  and 
went  to  the  Arbeiter  Zeitung  office,  reaching  there  about 
8  o'clock,  where  he  remained  about  ten  minutes.  That 
while  he  was  there,  a  telephone  message  was  received, 
asking  Mr.  Spies  to  speak  at  Deering,  and  that  Schwab's 
purpose  in  going  to  the  Haymarket  was  to  get  Spies 
to  respond  to  that  call.  That  he  went  to  the  Hay- 
market, looked  hurriedly  through  the  crowd  for  Spies, 
failed  to  fimi  him,  and  then  took  a  car  for  Deering-  him- 
self, to  speak  at  that  point.  As  to  his  course,  he  says 
that  he  went  over  on  Washington  street,  turned  north  on 
Desplaines,  across  Randolph,  and  that  north  of  Ran- 
(.'.olph,  on  Desplaines,  he  met  Schnaubelt,  and  talked  with 
him  about  the  Deering  meeting;  then  took  an  east-bound 
car    to   the   court-house,   and    at   the    court-house,  a  Cly- 


30 

bourne  avenue  car,  going  out  to  Deering's  factor}-.  That  at 
the  car  stables  he  was  met  by  a  Mr.  Preusser.  That  the 
time  required  to  go  from  the  Haymarket  to  the  court- 
house by  the  car  was  about  ten  minutes,  and  from  forty 
to  forty-five  minutes  were  required  to  go  from  the  court- 
house to  Fullerton  avenue.  That  he  went  with  Mr. 
Preusser  to  888  Cly bourn  avenue  to  see  the  committee, 
but  not  finding  them,  went  out  on  the  prairie,  corner  of 
Fullerton  and  Clybourn  avenues,  where  he  met  the  com- 
mittee, talked  with  them  a  few  minutes,  mounted  the 
stand,  and  made  a  speech  of  twenty  or  twenty-five 
minutes'  duration  about  the  eight-hour  movement, 
to  the  men  there  gathered,  who  had  struck  that  day, 
demanding  eight  hours  work'  and  ten  hours'  pay.  That 
after  the  meeting  was  over,  he  returned  with  Preusser  to 
a  saloon,  took  a  glass  of  beer  and  some  lunch,  and  then 
took  a  car  going  south,  leaving  the  car  at  Willow  street  and 
walking  home,  this  occupying  him  about  twenty  minutes, 
and  reached  home  at  about  ii  o'clock  that  night. 

He  says  that  he  did  not,  while  at  the  Haymarket,  enter 
Crane's  alley,  or  any  other  alley,  with  Mr.  Spies — had  no 
conversation  with  him  near  the  mouth  of  any  alley;  did 
not  walk  that  night  in  company  with  Spies  on  Randolph 
street  west  to  Halsted  street,  and  back  again  to  the  wagon 
— did  not,  in  company  with  Spies,  meet  Schnaubelt,  and 
did  not  sec  or  speak  to  Spies  at  all  that  night  at  the 
Haymarket.  That  he  did  not  say  anything  to  Spies  or 
anybody  else,  in  the  mouth  of  Crane's  alley,  about  pistols 
or  police,  or  whether  one  would  be  enough.  Had  no 
such  conversation  with  anybody  at  the  Haymarket,  or 
anywhere  else,  and  did  not  say  to  Spies,  or  anybody  else,  at 
any  time,  that  if  the  police  cam.e  we  were  ready  for  them, 
or  would  give  it  to  them,  or  words  to  that  effect.  About 
the  middle  of  Randolph  street  he  met  Mr.  Heinemann; 


31 

^e  made  some  inquiry  for  Spies,  and  directly  thereafter, — 
it  was  then  about  half-past  8  o'clock — he  took,  the  car 
-on  Randolph  street,  returning  to  the  court  house,  and 
about  twenty  minutes  of  9  he  took  the  Clybourn  avenue 
<ar. 

That  Mr.  Schwab  was  at  107  5th  avenue,  and  there 
received  a  telephone  call  to  Deering,  Spies  being  tirst 
-called  for,  and  that  he  left  that  place  after  receiving  that 
telephone  message  is  evidenced  as  follows:  By  the  posi- 
tive testimony  of  Patterson  (A.,  228;  M.,  42),  Waldo 
(A.,  245;  M.,  168),  Bach  (A.,  279;  M.,  398,  399),  and 
Fielden  (A.,  265;  M.,  307).  That  the  telephone  mes- 
sage was  sent  from  Deering  to  the  Arbeiter  Zeitung,  is 
■evidenced  by  the  testimony  of  Preusser  (A.,  248,  249; 
M.,  197-200).  That  he  was  seen  on  the  corner  of  Ran- 
dolph and  Desplaines  at  the  time  stated  by  him  is  evi- 
denced bj'  the  witnesses  of  the  prosecution,  Heinemann. 
a  reporter  of  the  Tribune  (A.,  126;  K.,  232),  and  Owen, 
a  reporter  of  the  Times  (A.,  124;  K.,  202).  A^o  other 
-witness,  except  Mr.  Thompson,  claims  to  have  seen  Schwab 
upon  this  allegitd  journey  fro7n  the  alley,  on  Desplaines 
.and  Randolph  streets,  and  back  again.  That  something 
after  8  o'clock,  Schwab  came  south  on  Desplaines  street 
and  took  an  east-bound  car  on  Randolph,  is  evidenced  by 
the  testimony  of  Hermann  Becker  (A.,  250). 

That  he,  in  fact,  went  to  Deering  and  spoke  there,  is 
historic,  and  will  not  be  questioned  by  the  representatives 
of  the  state.  Concerning  his  arrival,  etc.,  we  desire,  how- 
ever, to  call  attention  to  the  testimony  of  Edward  Preus- 
ser (A.,  249;  M.,  200),  Fritz  Stettler  (A.,  250),  William 
Radtke  (A.,  221)  and  Dietrich  Behrens  (A.,  222 ).  These 
witnesses  confirm  Schwab's  testimony  in  every  material 
particular;  their  testimony  conclusivelj'  shows  that  he 
remained    at    Deering,    all    told,    at    least    three-quarters 


32 

of  an  hour,  and  from  that  to  an  hour,  liaving  reached" 
there  at  half-past  9  to  twenty  minutes  to  10.  It  is 
demonstrated,  therefore,  that  he  did  not  leave  Deering 
until  in  the  neighborhood  of  half-past  10  o'clock  and 
that  it  was  nearl}-  an  hour's  journey  from  there  to  the 
Haymarket.  It  will  not  be  pretended  by  the  representa- 
tives of  the  state  that  Mr.  Schwab  was  at  the  Haymar- 
ket during  the  meeting  that  night,  although  certain  of  the 
state's  witnesses  early  in  the  case  stated  that  they  thought 
they  saw  him  there  during  the  speaking;  nor  will  it  be 
pretended  that  he  was  present  at  the  time  of  the  explosion 
of  the  bomb. 


(/;.)      Spies'  movements. 

In  order  to  further  demonstrate  the  error  of  Mr. 
Thompson,  we  now  call  attention  to  the  testimony  of 
Mr.  Spies  and  of  other  parties  accounting  for  his  move- 
ment that  night,  and  absolutely  refuting  this  story. 

August  Spies  testifies  in  reference  to  this  matter  (A., 
299,  N,  33  e/ se^^. ),  that  he  arrived  at  the  Haymarket 
about  twenty  to  twenty-tive  minutes  after  8,  in  com- 
pany with  his  brother  Henry;  that  when  he  reached 
there  no  meeting  was  in  progress,  but  there  were  crowds 
standing  about  the  corners;  that  he  looked  about  for  a 
speakers'  stand  and  selected  the  wagon,  without  moving 
it;  that  after  some  moments  he  called  the  crowd  together, 
mounted  the  wagon  and  inquired  for  Parsons.  That 
some  one  replied  that  Parsons  was  speaking  at  the  corner 
of  Halsted  and  Randolph  streets,  and  that  thereupon  he 
descended  from  the  wagon,  and,  in  company  with  his 
brother  Henry,  with  Ernest  Legner  and  with  Rudolph 
Schnaubelt,  whom  he  had  just  met,  he  started  to  find 
Parsons;  tliat  Schzvab  ivas  nut  -.cith  him  at  that  time  nor 


33 

at  any  time  during  that  evening,  and  that  Schnaubelt  told 
him  that  Schwab  had  gone  to  Deering.  That  he  did  not 
go,  on  leaving  the  wagon,  to  the  month  of  Cratie's  alley, 
and  did  not  enter  it  or  have  any  conversation  there  with 
Schwab  or  any  one  else  in  which  he  referred  to  pistols 
and  police,  nor  any  other  matter,  and  never  had  any  such 
conversation  'with  anybody.  Th'at  on  leaving  -the  wagon 
he  moved  in  a  south-westerly  direction  obliquely  across 
Desplaines  street  to  the  corner  of  the  Haymarket,  and 
from  there  went  west  on  Randolph  a  little  beyond  Union, 
when,  seeing  only  some  small  groups  of  people,  and  not 
seeing  Parsons,  he  returned  and  again  walked  diagonally 
across  Desplaines  street  to  the  wagon;  that  he  had  no  con- 
versation with  Schwab  at  the  corner  of  Union  street,  nor 
with  anj'body  else,  in  which  there  was  any  suggestion 
about  being  ready  for  them,  or  giving  it  to  them,  or  any- 
thing of  that  kind.  That  he  did  not  meet  Schnaubelt 
on  the  sidewalk  south  of  the  alley  on  Desplaines  street, 
but  that  Schnaubelt  was  with  him  in.  walking  from  the 
wagon  to  Randolph,  west  on  Randolph  and  back  to  the 
wagon.  That  there  was  no  truth  whatever  in  the  testi- 
mony of  Thompson  upon  the  stand  in  regard  to  this. 

This  testimony  of  Spies  is  corroborated  in  every  ma- 
terial particular  by  the  testimony  of  Henry  W.  Spies 
(A.,  240,  241),  and  finds  corroboration  in  the  testimony 
of  other  witnesses,  as  follows: 

That  after  inquiring  for  Parsons  from  the  wagon,  and 
then  dismounting  therefrom,  he  walked  in  a  south- 
westerly direction  in  a  group  of  three  or  four  men  toward 
the  north-west  corner  of  Desplaines  and  Randolph,  and 
did  not  go  in  the  direction  of  the  Crane  Bros,  alley,  or 
into  it,  is  evidenced  by  Wilhelm  Sahl  (A.,  205),  who 
swears  that  he  stood  about  the  middle  of  Desplaines 
street  in  a  south-westerly  direction  from  the   wagon,  and 


34      . 

this  group  passed  him.  Sahl  also  says  that  he  kno-j.'s 
Schwab,  and  that  he  did  not  see  Schzuab  with  Spies  on 
the  wagon,  or  afterwards,  and  that  he  was  not  in  the 
group  of  men  who  accompanied  Spies. 

Carl  Richter  (A.,  i86,  187)  says  that  he  had  been 
slightly  acquainted  with  Spies  for  a  year  or  more  prior 
to  the  Haymarket  meeting;  that  he  attended  that  meeting, 
standing  in  the  mouth  of  Crane's  alley  when  the  meeting 
was  opened;  that  Spies,  after  having  asked  for  Parsons, 
left  the  wagon,  but  the  witness  did  not  see  him  enter  the 
alley,  although  there  was  nothing  to  have  prevented  his 
seeing  him,  had  he  in  fact  gone  in  there.  That  he  went 
to  the  meeting  with  Robert  Lindinger,  who  remained 
with  him  during  the  entire  evening. 

Robert  Lindinger  ■  (A.,  215),  testifies  that  he  was 
with  Richter,  standing  at  the  mouth  of  Crane's  alley, 
about  midway  between  the  two  sidewalks,  and  midway  be- 
tween the  curbstone  and  the  building  line,  and  that  he 
did  not  see  Spies  or  anybody  else  pass  into  the  alley — 
had  never  seen  Schwab  in  his  life  before  the  time  of  his 
testifying;  saw  Spies  leave  the  wagon  after  asking  for 
Parsons,  and  return  in  about  five  or  ten  minutes,  and  then 
open  the  meeting. 

Frederick  Liebel  (A.,  188)  testifies  that  he  was  stand- 
ing by  the  lamp-post  on  the  corner  of  the  alley,  when 
Spies  inquired  for  Parsons  and  then  left  the  wagon: 
that  he  knew  Schwab  by  sight,  but  did  not  see  him  on 
or  near  the  wagon  when  Spies  made  his  inquiry  ;  didnU 
sec  Schwab  there  thai  night,  and  didiCt  see  Spies  go 
towards  the  alley;  that  the  lamp  was  lighted  at  the  time 
and  light  enough  for  him  to  notice  faces.  It  is  evident, 
that  if  Spies  and  Schwab  had  entered  the  alley  and 
had  the  conversation  detailed  by  Thompson,-  the  wit- 
nesses last  named,  from  their  respective  positions   with 


35 

reference  to  that  locality,  could  not  have  failed  to  observe 
the   parties  attempted  to  be  involved. 

Besides  this,  the  testimony  of  August  Spies  and  of  Henry 
Spies,  as  to  the  direction  taken  by  them  when  August 
Spies  left  the  wagon  in  search  of  Parsons,  and  that  he  did 
not  go  into  the  alley,  as  testified  by  Thompson,  is  posi- 
tively corroborated  by  at  least  two  of  the  witnesses  for 
the  state,  who  were  on  the  stand  before  Mr.  Thompsorl 
testified.  Officer  Cosgrove  (A.,  120,  121 ;  K,  167),  testifies 
that  "when  Spies  got  on  the  wagon  first,  he  called  out 
"  twice  if  Parsons  was  there,  and  told  somebody  in  the 
"  crowd  to  go  and  find  Parsons,  and  he  said  Fielden 
"  would  be  here  later.  Then  he  said  he  would  get  down 
"  from  the  wagon  and  go  and  find  Parsons,  himself.  He 
"  o-ol  dozvn  and  zvoit  in  a  soiith-iveslerly  direction.  He  came 
"  back  in  a  short  time  and  commenced  speaking." 

Still  stronger  is  the  testimony  of  Officer  McKeough, 
'who,  like  Cosgrove,  was  detailed  on  detective  service  at 
that  meeting.  His  testimony  is  as  follows  (A.,  122;  K, 
176) :  "  Spies  got  on  the  wagon  and  called  out  twice, '  Is 
«'  Parsons  here? '  He  received  no  answer,  and  said, '  Never 
c'  mind,  I  will  go  and  find  him  myself.'  Somebody 
"  said,  '  Let's  pull  the  wagon  around  on  Randolph  street 
"  and  hold  the  meeting  there.'  Mr.  Spies  said,  '  We  may 
<'  stop  the  street  cars.'  He  started  away  then,  and  Officer 
"  Meyers  and  myself  followed  him  as  far  as  the  corner. 
"  There  was  a  man  with  him,  who  I  think  was  Schwab,  but 
"  I  am  not  very  sure  about  that,  and  in  about  five  minutes 
"  he  returned,  and  when  I  got  back  he  was  addressing 
"  the  meeting,  and  talking  about  what  had  happened  to 
"  their  brethren  the  day  before  at  McCormick's." 

If  it  is  true,  as  Officer  Cosgrove  says,  that  Spies  got 
down  from  the  wagon  and  went  in  a  soutii-westerh 
direction  (and  this  is   confirmed   by  the   witness   Sahl,  as 


36 

above  stated),  and  if  Officer  McKeough  with  Officer 
Meyers  followed  him  as  far  as  the  corner  (the  corner  of 
Randolph  and  Desplaines  streets),  then  the  statement 
of  Mr.  Thompson  that  August  Spies  and  Schwab 
passed  from  the  wagon  in  a  southeasterly  direction  into 
the  alley,  and  had  there  the  conversation  which  he 
narrates,  is  shown  to  be  absolutely  without  founda- 
tion in  fact.  This  position  finds  further  corroboration, 
though  not  so  much  in  detail,  from  the  testimony  of 
Mr.  English,  who  says  (A.,  129;  K.,  274),  that  he 
was  present  when  Spies  got  up  on  the  wagon,  and  that 
he  got  down  oft'  the  wagon  and  went  over  towards  Ran- 
dolph street.  He  says  further  that  he  was  gone  perhaps 
some  five  or  ten  minutes,  and  adds:  "  As  he  passed  me 
"  in  coming  back,  I  asked  him  if  Parsons  was  going  to 
"  speak.  I  understood  him  to  say,  yes.  Then  he  got  up 
"  on  the  wagon  and  said,  '  Gentlemen,  please  come  to 
"  order."  How  is  it,  that  Mr.  English,  who  knew  the 
parties,  had  heard  them  make  speeches  for  years  (A., 
133;  K.  284),  who,  as  appears  from  his  testimony,  did 
not  only  see  Spies  on  his  way  back  to  the  wagon,  but 
even  spoke  with  him,  did  not  observe  that  '  getting  into 
a  hudde  '  of  the  group,  as  described  so  vividly  by  Mr. 
Thompson?  How  is  it  that  Mr.  English  is  so  absolutely 
silent  about  the  presence  of  Mr.  Schwab  on  that  occasion? 
True,  these  facts  only  appear  negatively,  but  it  must  not 
be  forgotten,  that  at  the  time  Mr.  English  was  cross- 
examined,  Mr.  Thompson  had  not  yet  been  called  upon 
the  stand. 

We  feel  justified  in  this  connection  in  calling  attention 
to  another  matter.  Brazleton,  the  reporter  of  the  Inter 
Ocean,  was  named  by  Mr.  Thompson,  as  the  man  who 
pointed  out  Schwab  to  him  upon  the  Haymarket  some 
time  before  8  o'clock.      Brazleton's  name  was  endorsed 


37 

on  the  back  of  the  indictment  as  one  of  the  witnesses  for 
the  State  (Record,  Vol.  i,  p.  21,  22),  yet  Brazleton  was 
not  produced  by  the  State  as  a  witness,  even  when  the 
State  was  notified  by  the  defendants  to  produce  him. 

Ernest  Legner,  the  young  man  mentioned  in  the  tes- 
timony of  August  Spies  and  Henry  Spies,  as  accompany- 
ing them  and  Schnaubelt  on  this  trip,  was  also  one  of  the 
witnesses  for  the  State,  whose  name  was  indorsed  upon 
the  indictment  (Record,  Vol.  i,  p.  21,  22);  but  who 
was  not  produced  as  a  witness,  although  his  pro- 
duction was  demanded  by  the  defendants  by  formal 
notice.  The  omission  to  produce  Legner  and  put 
him  on  the  stand,  was,  in  our  view,  extremely  signifi- 
cant in  this  case,  and  that  significance  will  become  more 
apparent  when  we  consider  another  feature  of  the  testi- 
mony in  connection  with  the  case  of  Mr.  Spies.  The  fact 
is,  that  Legner's  presence  was  very  much  desired  by  the 
defendants,  and  that  every  effort,  as  the  record  shows 
was  made  by  them  to  procure  his  attendance  after  it  be- 
came known  that  the  State  would  not  call  him  as  a  wit- 
ness, but  unavailingly.  Legner  had  gone  out  of  the  state, 
and  his  whereabouts  could  not  be  ascertained  by  the  de- 
fendants, nor  his  attendance  procured.  The  State  chose 
to  offer  Mr.  Thompson's  testimony  without  attempting 
to  corroborate  it  by  Brazleton;  and  did  not  produce  Mr. 
Legner,  although  they  had  him  as  a  witness  before  the 
grand  jury  (i  A.,  4),  and  his  name  was  upon  the  indict- 
ment, when  they  could  have  easily  taken  the  steps  under 
the  provisions  of  the  law  which  would  have  compelled 
his  presence  and  testimony. 


38 


(c.)     Inherent  improbability  of  Thotnpson^s  story. 

As  to  Thompson's  entire  story,  we  have  to  choose 
between  his  uncorroborated  statement  on  the  one  side, 
and  the  testimony  of  all  of  the  witnesses  above  reviewed 
both  on  behalf  of  the  State  and  the  defendants  on  the 
other.  No  one  can  hesitate  one  moment  in  saying  that  Mr- 
Thompson's  testimony  is  refuted  by  an  overwhelming 
preponderance  of  the  evidence.  But  beyond  this,  we  de- 
sire to  call  attention  to  certain  inherent  improbabilities, 
which  characterize  this  testimony,  and  which,  in  our  judg- 
ment, stamp  it  as  unquestionably  false.  The  testimony 
shows  without  contradiction  that  Spies  and  Schwab  were 
both  German  born.  (A.,  296;  N,  8,  18.)  It  was  offered 
by  the  defendants  to  prove  that  they  were  in  the  habit  of 
carrying  on  their  personal  conversations  in  their  mother 
tongue,  but  the  offer  was  rejected  by  the  judge,  to  which 
ruling  the  defendants  e.\cepted.  (N,  56;  A.,  303.)  In  our 
judgment,  this  ruling  of  the  court  was  clearly  erroneous,  as^ 
the  fact,  if  proved,  was  certainly  material  to  be  considered 
in  connection  with  this  issue. 

When  a  man  in  Mr.  Thompson's  position  admits  that 
he  had  never  before  seen  either  of  these  parties  ;  that 
he  never  had  heard  Schwab  speak  at  all  and  did  not 
Icnow  his  voice  ;  that  he  never  had  heard  Spies  speak 
save  the  single  question  from  the  wagon  "  Is  Parsons 
here?"  —  probabl}-  spoken  in  a  loud  tone  of  voice, 
while  it  is  not  probable  that  he  shouted  in  the  alley  when 
speaking  about  police  and  revolvers,  with  a  crowd  of 
people  around  him — undertakes  to  swear  positively  that 
standing  with  his  back  to  a  wall  he  heard  a  conversation,, 
and  claims  that  it  was  held  between  Spies  and  Schzvab, 
though   he   admits  he  did  not  turn  around  to  see  zvlw  the 


39 

■parties  zvere,  though  he  could  not  recognize  them  by 
their  voices,  and  though  the  first  remark  occurred  about 
a  minute  and  a  half  after  Spies  and  Schwab  had  dis- 
appeared in  the  alley,  he  is  making  a  statement  which 
he  has  no  right  to  ask  any  one  to  believe.  But  aside  from' 
this,  can  it  be  conceived  that  these  two  Germans,  if 
engaged  in  plotting  a  direful  conspiracy,  would  have 
carried  on  their  conversation  in  the  English  language 
rather  than  their  mother  tongue?  Is  it  reasonable  to 
believe  that  they  would  have  arranged  the  details  for  its 
execution  and  for  the  throwing  of  that  bomb,  while  they 
were  surrounded  by  a  crowd,  as  Thompson  admits 
(A.,  135,  K,  291)?  Would  conspirators  planning  street 
murder,  attempt  to  discuss  the  details  of  their  plan  pub- 
licly and  openly,  in  a  tone  of  voice  which  could  be  heard 
by  an  eaves-dropper  standing  several  feet  around  the 
corner  of  the  building,  or,  as  was  claimed  by  T'hompsom 
as  to  the  alleged  conversation  at  the  crossing  of  Union 
street,  in  a  tone  of  voice  loud  enough  for  the  audience  of 
passers-by? 

Still  another  suggestion.  Mr.  Thompson  admits  that 
he  had  not  seen  ever  before  that  night  either  Schwab 
or  Schnaubelt  (K,  291,  307);  and  Schnaubelt  he  has 
certainly  never  seen  since.  Yet  he  undertakes  to  identify 
both.  Is  such  identification  worthy  of  consideration?  As 
to  Schnaubelt,  he  saw  him  only  at  a  distance  of  eight  or 
ten  feet,  and  then  his  bac/c  zvas  turned  to  Thompson 
(K,  308);  while  when  Schnaubelt  was  on  the  wagon  his 
back  was  substantially  toward  where  Thompson  stood.  On 
that  day,  as  is  evidenced  by  reference  to  any  standard  al- 
manac, the  moon  was  in  full  dark,  and  the  sun  set  at  6:59 
p.  M.;  so  that  at  8  o'clock  there  was  no  light,  save  artifi- 
cial. As  to  this,  the  evidence  shows  conclusively  that 
there  was  no  light   on   the    wagon,   and   the   only   street 


lamp  near  was  that  on  the  corner  of  the  alley,  fully 
twenty  feet  from  the  south  end  of  the  wagon.  Besides 
this,  there  was  the  electric  light  from  the  front  of  a  thea- 
ter located  on  Desplaines  street,  more  than  a  block  to  the 
south.  The  faces  of  the  persons  on  the  wagon,  therefore, 
when  they  faced  west  toward  their  audience,  were  in  the 
shadow;  or,  at  most,  were  only  in  the  light  in  profile. 
Besides,  Schnaubelt  had  on  a  hat,  which  could  not  but 
partially  shade  his  face — while  his  photograph  was  taken 
bare-headed.  What  shall  be  said  of  a  witness  who,  after 
the  lapse  of  more  than  two  months,  attempts  to  identify 
by  a  photograph  under  such  conditions,  a  man  whom  he 
was  never  near  enough  to  master  the  details  of  form, 
color  and  expression  so  essential  to  reliable  identification, 
in  the  absence  of  personal  acquaintance? 

Mr.  Thompson's  testimony  thus  utterly  discredited, 
there  remains  not  a  shadow  of  proof  connecting  Mr. 
Schwab  with  the  Haymarket  meeting  or  the  throwing  of 
the  bomb  thereat. 

August  Spies. 

(a.)      The  McCormick  Meeting. 

On  the  afternoon  of  May  3d,  Mr.  Spies  attended  the  so- 
called  McCormick  meeting.  The  testimony  introduced 
by  the  state  as  to  that  meeting  is  as  follows:  On 
the  afternoon  of  that  day  a  meeting  of  the  Lumber 
Shovers'  Union  was  held  in  the  vicinity  of  McCor- 
mick's  factory,  whose  object  was  to  receive  the  report 
of  a  committee  that  had  been  sent  to  the  bosses  of  the 
lumber  yards  to  get  the  eight-hour  concession.  There 
were  from  five  to  si.x  thousand  men  in  the  crowd.  The 
meeting  was  addressed  from  the  top  of  a  freight  car  first 
by  one  Fehling,  afterwards  by  Spies,  the  plaintiff  in  error. 


Haraster,  the  president  of  the  Bohemian  section  of  the 
Lumber  Shovers'  Union,  tried  to  prevent  the  speakers 
from  speaking,  and  told  the  people  riot  to  listen  to  them. 
(A.,  34,  35.)  Spies  addressed  the  crowd  in  German 
for  about  ten  or  fifteen  minutes;  he  was  rather  excited, 
and  very  earnest;  the  crowd  patiently  listened  to  him  un- 
til the  bell  of  McCormick's  factory  rung  (A.,  33;  I, 
402),  when  all  of  a  sudden  somebody  on  the  opposite 
end  of  the  car  from  which  Spies  was  speaking  (A., 
33;  I,  398,  402)  shouted,  "  Now,  boys,  let  us  go  for  them 
"  damn  scabs."  At  that  moment  a  portion  of  the  crowd 
which  was  near  McCormick's  factor}'  commenced  to 
move  towards  McCormick's.  (A.,  33;  1,403.)  Spies 
did  not  go  with  the  crowd.  (A.,  32;  I,  395,  396.) 
The  crowd  pitched  into  McCormick's  men  going  home 
from  work,  threw  bricks,  stones  and  sticks  into  them  and 
into  the  windows  of  the  factory.  Officer  West  (A., 
31),  who  was  stationed  at  the  factory,  was  himself  at- 
tacked; he  turned  in  the  alarm  for  the  police,  who  arrived 
within  a  few  minutes  and  scattered  the  crowd  (A.,  32; 
I,  392),  firing  into  them,  and  using  their  clubs.  Officer 
Jinright  (A.,  35)  claims  that  he  heard  shots  from  the 
■crowd,  but  he  cannot  say  whether  the  police  had  fired 
before  he  heard  those  shots.  However,  none  of  the  po- 
lice were  shot,  though  some  of  them  were  hit  with 
stones.  (A.,  35;  1,420.)  Immediately  after  the  patrol 
wagon,  containing  eleven  policemen,  had  arrived  (A., 
35;  I,  416),  a  couple  of  hundred  other  policemen  came 
upon  the  ground  (A.,  36;  I,  421);  at  that  time,  how- 
ever, the  firing  was  over.  The  crowd  scattered  as  soon 
as  they  saw  the  additional  force  approaching.  (A., 
36;  I,  422.)  Officer  Shane  testified  (A.,  36)  that  he 
was  detailed  to  look  up  the  injured  citizens,  and  admits 
that  he  found,  as   a   result   of  the  police   firing,  one  who 


42 

died,  and  two  or  three  others  who  were  injured.  As  to- 
the  contents  of  Spies'  speech,  the  only  testimony  offered 
b)' the  state  is  that  of  Mr.  Baker,  who  says  (A.,  33; 
I,  402)  he  heard  him  speak  of  wives  and  children  and' 
/wines,  and  appealing  for  their  protection. 

In  connection  with  the  foregoing  testimony  the  state 
was  permitted  to  introduce  in  evidence  an  account  of  the 
McCormick  meeting,  written  by  Spies  and  published  in 
the  Arbeiter  Zeitung  the  following  day.  (People's  Ex- 
hibit 6t,;  I  A.,  179). 

The  testimony  introduced  in  behalf  of  the  plaintiff  in 
error,  Spies,  as  to  the  McCormick  meeting,  so  called,  was- 
in  brief  as  follows:  That  on  Sunday  morning.  May  2d,, 
at  a  meeting  of  the  Central  Labor  Union,  which  is  a  body 
composed  of  delegates  from  about  twenty-five  or  thirty 
different  labor  unions  in  Chicago  (A.,  1S5;  L,  156),. 
the  delegates  of  the  Lumber  Shovers'  Union,  then  on  a 
strike  for  the  shortening  of  the  hours  of  labor,  suggested 
that  a  meeting  of  the  lumber  shovers  had  been 
called  for  Monday  afternoon  at  the  Black  road,. 
and  requested  that  a  good  speaker,  who  could 
keep  the  meeting  quiet  and  orderly,  be  sent  to- 
that  meeting.  In  the  afternoon,  at  another  meeting  of 
the  Central  Labor  Union,  which  Mr.  Spies  attended  m 
the  capacity  of  a  reporter,  Mr.  Zeller,  of  the  agitatior) 
committee  of  the  Central  Labor  Union,  requested  Mr. 
Spies  to  go  out  the  ne.xt  day  and  address  the  lumber 
shovers'  meeting.  All  this  is  uncontradicted  and  appears 
from  the  testimony  of  Zeller  (A.,  184,  185;  L,  155,  156), 
Urban  (A.,  201  ;L,  340-342),  Witt  (A.,  251  ),  and  Spies- 
(A.,  297;  N,  20). 

On  the  following  day  Spies  went  out  to  the  appointed 
place  of  meeting,  and  found  there  gathered  a  crowd  of 
over  six   thousand  men.     Other  speakers   were    present^ 


43 

some  of  whom  preceded  him  upon  the  platform.  He  was 
introduced  by  Mr.  Breesl,  secretary  of  the  Lumber  Shov- 
ers'  Union.  Objection  to  his  speaking  was  made  b}'  some 
persons  present,  on  the  ground  that  he  was  a  socialist,  but 
Breest  stated  that  Spies  had  been  invited  to  address  the 
audience  and  was  sent  by  the  Central  Labor  Union.  Mr. 
Spies  then  proceeded  to  speak.  (A.,  297;  A.,  253.)  The 
substance  of  his  speech  was  to  the  effect  that  he  advised 
the  workingmen  to  stand  together  and  to  enforce  their 
demands  at  all  hazards,  otherwise  the  bosses  would,  one 
by  one,  defeat  them.  Nothing  was  said  by  him  of  an 
incendiary  nature;  no  suggestion  of  violence  was  made, 
not  one  word  was  said  in  regard  to  the  use  of  force  or 
arms.  (A.,  297;  N,  23.)  Besides  the  testimony  of 
Spies,  this  appears  from  the  testimony  of  Witt  (A.,  252; 
M,  220),  Breest  (A.,  253;  M,  229),  Schlavin  (A.,  254; 
M,  233),   Pfeiffer   (A.,  254;   M,  236). 

Spies  swears  that  he  had  no  idea,  when  he  was  invited, 
of  any  relationship  of  McCormick's  employes  to  that 
meeting,  or  that  the  locality  of  the  proposed  meeting  was 
in  the  proximity  of  the  McCormick  works.  (A.,  297; 
N,  21.)  Besides,  it  is  shown,  without  contradiction,  that 
the  lumber  shovers  whom  Spies  was  addressing  had 
absolutely  no  connection  zuith  the  factory  or  employes  of 
McCormick.     (A.,  252;  M,  221 ;  A.,  255,  M,  237.) 

While  Spies  was  speaking  and  when  McCormick's  bell 
rang,  a  part  of  the  crowd  oh  the  outskirts,  some  500 
people,  detached  themselves  and  ran  towards  where  the 
men  were  coming  out  of  McCormick's  works,  distant 
some  three  or  four  blocks  from  the  meeting.  Spies 
beckoned  to  the  crowd  to  remain,  saying,  in  the  course  of 
his  remarks,  that  they  had  nothing  to  do  with  McCor- 
mick's. He  went  on  with  his  speech  to  a  conclusion, 
speaking  some  five  or  ten  minutes  after  the   interruption. 


44 

and  was  thereupon  elected  by  the  Lumber  Shovers'  Union 
as  a  member  of  a  committee  appointed  to  wait  upon  the 
lumber  bosses.      (A.,  252;  M,  223;  A.,  298;  N,  24.) 

Meantime  the  sound  of  shots  was  heard  at  the  meeting, 
and  at  the  same  time  the  police  drove  up  in  a  patrol 
wagon  towards  McCormick's,  followed  immediately  by  a 
large  number  of  police  on  foot.  Then  only,  Mr.  Spies, 
who  to  his  duties  as  editor  of  the  Arbeiter 
Zeitung  added  those  of  a  reporter  for  the  same 
paper,  went  up  to  McCormick's,  and,  coming 
into  the  neighborhood  of  the  meeting,  discovered  that  the 
police  were  chasing  people  who  were  unarmed  and  flee- 
ing in  every  direction,  pursuing  them  behind  cars  and 
in  various  localities,  and  firing  upon  them  indiscrim- 
inately. 

At  that  moment  he  was  advised  by  one  whom  he 
met  coming  from  the  direction  of  McCormick's,  a 
stranger  to  him,  that  two  men  had  been  carried  away 
dead,  and  at  least  twenty-five  had  been  shot,  adding 
words  of  contempt  for  the  union  men,  assembled  there 
who  would  let  those  men  be  shot  down  like  dogs. 

Mr.  Spies  admits  that  his  blood  was  boiling  over  what 
he  heard  and  witnessed,  and  that  he  thereupon  went  back 
to  the  meeting  that  he  had  been  addressing,  and  made  an 
appeal  to  them  that  they  should  proceed  to  the  relief  of 
the  parties  who  were  under  the  fire  of  the  police,  near  the 
McCormick  works,  but  they  were  unconcerned  and  went 
home.  Seeing  that  nothing  could  be  done,  Spies  returned 
to  the  Arbeiter  Zeitung  office,  and  under  the  excitement  of 
the  hour,  and  what  he  had  seen  and  heard,  wrote  the  Re- 
venge circular,  so-called. 

It  is  evident  from  the  foregoing  review  of  the  testimony 
that  the  claim  made  by  the  state,  that  Spies  incited  the 
violence  against  McCormick's  property  and  employes,  is 


45 

without  any  foundation  in  fact.  For  this  reason,  the  whole 
evidence  relating  to  the  McCormick.  meeting  was  imma- 
terial; besides,  it  was  wholly  irrelevant,  as  bearing  no 
relation  to  the  Haymarket  meeting.  A  fortiori  we  claim 
it  was  incompetent  as  against  any  of  the  other  plaintiffs 
who  are  in  no  wise  connected  with  this  affair.  There- 
fore, it  was  error  for  the  court  to  admit  it  over  the  objec- 
tion and  exception  of  the  plaintiffs  in  error,  particularly 
those  other  than  Spies. 


{b.)      The  Reveu^^e  Circular. 

We  have,  however,  considered  the  details  of  the  Mc- 
Cormick meeting,  because  it  explains  the  circumstances 
under  which  Spies  wrote  the  Revenge  circular,  the  English 
part  of  which  is  as  follows:  (i  A.,  141.)  "Revenge! 
"  Workingmen!  To  arms!  Your  masters  sent  out  their 
"  blood-hounds  —  the  police  —  they  killed  six  of  your 
"  brothers  at  McCormick's  this  afternoon.  They  killed 
"  the  poor  wretches,  because  they,  like  you,  had  courage 
"  to  disobey  the  supreme  will  of  your  bosses.  They  killed 
"  them  because  they  dared  ask  for  the  shortening  of  the 
"  hours  of  toil.  They  killed  them  to  show  you  '  free 
"  American  citizens  '  that  you  must  be  satisfied  and  con- 
"  tented  with  whatever  your  bosses  condescend  to  allow 
"you,  or  you  will  get  killed! 

"  You  have  for  years  endured  the  most  abject  humili- 
"ations;  you  have  for  years  suffered  immeasurable 
"iniquities;  you  have  worked  yourselves  to  death;  you 
"have  endured  the  pangs  of  want  and  hunger;  your 
"  children  you  have  sacrificed  to  the  factory  lords — in 
"  short,  you  have  been  miserable  and  obedient  slaves  all 
"these  years.  Why?  To  satisfy  the  insatiable  greed 
"and  fill  the  coffers  of  your  lazy,  thieving  master!  When 


46 

"  you  ask  him   now  to  lessen  your  burden,  he  sends  his 
"  blood-hounds  out  to  shoot  you,  kill  you! 

"  If  you  are  men,  if  you  are  the  sons  of  your  grand- 
"  sires,  who  have  shed  their  blood  to  free  you,  then  vou 
"  will  rise  in  3-our  might,  Hercules,  and  destroy  the  hideous 
"  monster  that  seeks  to  destroy  you. 

"  To  arms,  we  call  you,  to  arms! 

"  Your  Brothers." 

The  German  part  of  the  circular,  which  followed  the 
above,  expresses  the  same  ideas  in  substance,  and  may  be 
found  incorporated  in  the  report  of  the  McCormick  meet- 
ing published  in  the  Arbeiter  Zeitung  of  Maj-  4th  (i  A., 
179-182). 

As  to  the  assertion  in  this  circular  that  six  workingmen 
had  been  killed,  it  appears  from  the  testimony  of  Mr. 
Spies  that  he  wrote  at  first  that  two  had  been  killed,  accord- 
ing to  the  information  received  by  him  before  leaving  the  vi- 
cinity of  McCormick's;  but  upon  seeing  a  report  about 
the  occurrence  in  the  5  o'clock  News,  in  which  it  was 
stated  that  six  men  had  been  killed  by  the  police,  Spies 
changed  the  figure  accordingly.  (A.,  298;  N,  27.)  This 
is  not  contradicted,  and  if  it  were  not  correct  it  would  have 
been  very  easy  for  the  state  to  prove  that  the  5  o'oclock 
edition  of  the  Daily  News  of  that  day  did  not  contain  any 
such  information. 

The  testimony  shows  that  on  the  same  afternoon  Mr. 
Spies  detained  six  compositors  in  the  Arbeiter  Zeitung 
office  after  the  regular  hour  for  quitting  work,  which  was 
5  o'clock,  and  had  the  Revenge  circular  put  in  type  by 
them.  This  was  done  in  about  half  an  hour  or  an  hour. 
Then  the  form  was  sent  over  to  Burgess'  printing 
establishment,  where,  from  time  to  time,  ditTerent  parties 
called  to  get  copies  of  that  circular. 


47 

The  testimon)-  further  shows  that  this  circular  was  dis- 
tributed that  night,  principally  at  different  labor  meetings, 
among  them  a  meeting  of  the  metal  workers  at  Seamen's 
Hall,  a  meeting  of  the  Carpenters'  Union  at  Zepf's  Hall,  a 
meeting  of  the  brewers  at  the  north  side  Turner  Hall,  and 
at  meetings  at  54  West  Lake  street. 

H.  C.  Smythe,  a  Tribune  reporter,  testifies  that  a  fetv 
minutes  after  6  o'clock  on  Monday  afternoon,  while  stand- 
ing in  the  ehtrance  of  54  West  Lake  street,  talking  with 
the  proprietor,  Mr.  Greif,  his  attention  was  attracted  by 
seeing  a  few  of  the  circulars  flying  through  the  air.  He 
picked  up  one.  Just  at  that  moment  he  saw  a  horseman 
'(A.,  92,  93),  but  he  did  not  see  the  man  on  horseback 
distributing  the  bills,  and  is  not  positive  that  the  man  who 
rode  the  horse  brought  the  circulars.  This  testimony  is 
•entirely  uncorroborated  by  any  other  evidence  in  the 
record.  As  to  the  time  fi.ved  by  Mr.  Smythe,  he  is  di- 
rectly contradicted  by  Riechel,  also  a  witness  for  the  state, 
who  says  it  was  after  7  o'clock  when  he  took  the  galley  of 
ihe  Revenge  circular  over  to  Burgess  (A.,  94;  J,  384). 

There  were  printed  about  twenty-five  hundred  of  those 
circulars  (A.,  84;  J,  280),  but  not  more  than  half  of 
them  were  actually  distributed  (A.,  298;  N,  27). 

In  regard  to  his  motives  in  publishing  this  circular,  Mr. 
Spies  gives  the  following  explanation  (A.,  311;  N,  99  ct 
scg.):  "  When  I  wrote  it,  I  thought  it  was  proper;  I 
"  don't  think  so  now.  I  wrote  it  to  arouse  the  working 
"  people,  who  are  stupid  and  ignorant,  to  a  consciousness 
"  of  the  condition  that  they  were  in,  not  to  submit 
"  to  such  brutal  treatment  as  that  by  which  they 
■"  had  been  shot  down  at  McCormick's.  I  wanted 
"  them  not  to  attend  meetings  under  such  circumstances 
"  unless  they  could  resist.  I  didn't  want  them  to  do  any- 
■"  thing  in  particular;  I  didn't  want   them  to  do  anything. 


48 

«•  That  I  called  them  to  arms  is  a  phrase,  probably  an 
"  extravagance.  I  did  intend  that  they  should  arm  them- 
"  selves.  I  have  called  upon  the  workingmen  for  years 
"  and  years,  and  others  have  done  the  same  thing  before 
"  me,  to  arm  themselves;  they  have  a  right  under  the 
"  constitution  to  arm  themselves,  and  it  would  be  well  for 
"  them  if  they  were  all  armed.  I  called  on  them  to  arm 
"  themselves,  not  for  the  purpose  of  resisting  the  lawfully 
"  constituted  authorities  of  the  city  and  county,  in  case 
"  they  should  meet  with  opposition  from  them,  but  for 
"  the  purpose  of  resisting  the  unlawful  attacks  of  the 
"  police,  or  the  unconstitutional  or  unlawful  demands  of 
"  any  organization,  whether  police,  militia  or  any  other." 

There  is  also  evidence  tending  to  show  that  this  cir- 
cular was  read  before  a  meeting  of  the  armed  sections  of 
different  socialistic  organizations  held  on  the  night  of  May 
3,  1886,  in  the  basement  of  54  West  Lake  street,  of 
which  meeting  we  shall  speak  more  fully  hereafter  ;  that 
the  McCormick  meeting  and  the  action  of  the  police 
thereat  were  discussed  by  that  meeting,  and  as  a  result 
the  Haymarket  meeting  was  called  for  the  next  evening, 
for  the  express  purpose  of  denouncing  the  atrocious  act 
of  the  police. 

But  there  is  no  evidence  whatever  tending  to  show 
that  Mr.  Spies  had  any  knowledge  of,  connection  with, 
or  relation  to  that  meeting  of  the  armed  groups;  there  is 
no  evidence  that  he  knew  that  such  a  meeting  would 
be  held  or  that  the  circular  written  by  him  would 
be  read  by  that  meeting.  Not  one  word  can  be  found 
in  the  circular  itself  which  in  anywise  relates  to  the 
Haymarket  meeting,  or  the  throwing  of  the  bomb  thereat. 
There  is  no  evidence  whatever  that  the  party  who  threw 
the  bomb  ever  read  the  circular,  ever  heard  of  it  or  ever 
was   influenced  or  induced   by  it   lo  commit  the    crime 


49 

charged  in  the  indictment.  Its  being  permitted  to  be  in- 
troduced in  evidence  and  read  to  the  jury  as  evidence 
against  all  plaintiffs  (A.,  27;  O,  348-9)  was  palpable 
error. 

(c.)       The  circular  calling-  the  Hay  market  meeting. 

On  the  morning  of  May  4,  1886,  August  Spies  was 
asked  by  Adoiph  Fischer  to  address  a  meeting  of  work- 
ingmen  on  the  Haymarket  square  that  evening.  (A., 
299;  N.,  29,  30.)  To  this  request  Mr.  Spies  gave  a 
favorable  answer.  Shortly  thereafter,  there  came  under 
his  observation,  for  the  first  time,  the  circular  calling  the 
meeting,  in  the  preparation  of  which  circular  he  had  had 
no  part.  The  English  portion  of  the  circular,  as  pre- 
sented to  him,  was  in  the  words  and  figures  following: 

"Attention,  Workingmen!  Great  mass-meeting  to- 
"  night,  at  7:30  o'clock,  at  the  Haymarket,  Randolph  St., 
"  bet.  Desplaines  and  Halsted.  Good  speakers  will  be 
"  present  to  denounce  the  latest  atrocious  act  of  the  police, 
"  the  shooting  of  our  fellow-workmen  yesterday  afternoon. 
'  Workingmen,  arm  yourselves,  and  appear  in  full  force! 
"  The  Executive  Committee." 

Immediately  upon  reading  the  circular  over,  Mr.  Spies 
stated  that  the  line,  "  Workingmen  arm  yourselves  and 
"  appear  in  full  force,"  must  be  stricken  out  of  the  cir- 
cular, or  he  would  not  attend  the  meeting  or  speak 
thereat.  (A.,  299;  N,  31,  32.)  His  reasons  for  doing 
this  Mr.  Spies  states  as  follows  (A.,  311;  N,  97,  98): 
"  I  objected  to  that  principally  because  I  thought  it  was 
"  ridiculous  to  put  a  phrase  in  which  would  prevent  peo- 
"  pie  from  attending  the  meeting;  another  reason  was 
"  that  there  was  some  excitement  at  that  time,  and  a  call 
"  for  arms  like  that  might  have  caused  trouble  between 


50 

*'  the  police  and  the  attendants  of  that  meeting."  At  that 
time  the  circulars  had  not  been  distributed,  and  but  a 
few  of  them  had  been  printed.  It  is  possible  that  a  few 
of  those  that  had  been  printed  had  theretofore  been 
•or  were  thereafter  carried  away  by  unknown  parties, 
but  there  was  no  general  distribution  of  that  circu- 
lar. Mr.  Fischer  at  once  acquiesced  in  the  proposal  that 
that  line  should  be  stricken  out  and  sent  over  to  the 
printers,  Wehrer  &  Klein,  and  had  the  line  taken  out; 
and  thereafter  about  20,000  circulars  were  printed 
with  this  line  omitted,  otherwise  the  same  as  above, 
and  distributed  generally  throughout  the  city.  (A.,  299, 
N,  32;  A.,  257,  M,  251-253;  A.,  138,  K,  319,  320.J 
This  circular  called  the  Haymarket  meeting,  and 
the  foregoing  is  August  Spies'  connection  and  his 
entire  connection  therewith.  He  had,  personally,  noth- 
ing whatever  to  do  with  the  calhng  of  the  meeting,  and 
no  instrumentalit)'  in  procuring  it  to  be  called.  He  knew 
nothing  of  any  purpose  to  hold  the  meeting  until,  on  the 
morning  of  May  4th,  he  was  requested  by  Mr.  Fischer  to 
address  it.  (A.,  299,  N,  30.)  That  afternoon,  in  the  issue  of 
the  Arbeiter  Zeitung,  this  circular  was  reprinted  in  the  an- 
nouncement column,  in  the  same  form  in  which  it  was  dis- 
tributed, namely:  with  the  line,  "  Workingmen,  arm  your- 
"  selves,"  etc.,  omitted.     (^X,  32.) 


\  d. )      The  signal  '■'■RuhcP 

It  appears  that  the  meeting  of  the  armed  sections  at 
54  West  Lake  street,  on  Monday  night,  resolved  that  in 
■certain  contingencies,  tiie  word  "  Ruhe"  should  be^  pub- 
lished in  the  Arbeiter  Zeitung  under  the  heading  "  Brief- 
kasten '"  (Letter-box),  as  a  signal  for  certain  action  by 
the  members  there  present.     This  we  shall  consider  more 


particularly  in  the  review  oE  the  case  made  against 
Adolph  Fischer.  It  also  appears  that  in  the  Arbeiter 
Zeitung  of  May  4th  the  word  "  Ruhe  "  actually  did 
appear  under  the  heading  "  Briefkasten."  "Ruhe"  is 
a  German  word,  meaning  quiet,  rest.  (A.,  4;  J,  59.) 
Mr.  Spies  wrote  the  word  "  Ruhe  "  for  insertion  in  the 
Arbeiter  Zeitung  on  May  4th,  as  he  himself  admits;  but 
there  is  no  evidence  showing  or  tending  to  show  that  Mr. 
Spies  at  the  time  knew  of  any  special  import  attached  to 
that  word.  In  fact,  there  was  no  evidence  introduced  by 
the  state  as  to  how  Mr.  Spies  came  to  write  that  word 
for  publication.  Mr.  Spies  himself  gives  the  following 
account,  which  is  entirely  uncontradicted  (A.,  306;  N, 
63  e/  seg.):  "It  happened  just  the  same  as  with  any 
"  other  announcement  that  would  come  in.  I  received  a 
"  batch  of  announcements  from  a  number  of  labor  or- 
"  ganizations  and  societies  a  little  after  11  o'clock  in  m\- 
"  editorial  room,  and  went  over  them.  Among  them  was 
"  one  which  read,  '  Mr.  Editor,  please  insert  in  the  letter- 
"  bo.x  the  word  "  Ruhe  "  in  prominent  letters.'  This  was 
"  in  German.  There  is  an  announcement  column  of 
"  meetings  in  the  Arbeiter  Zeitung,  and  a  single  word,  or 
"  something  like  that,  would  be  lost  sight  of  in  the  an- 
"  nouncements.  In  such  cases,  people  generall)'  ask  to 
"  have  that  inserted  under  the  heading  of  letter-box. 
"  Upon  reading  that  request,  I  just  took  a  piece  of  paper 
"  and  marked  on  it  '  Brief-kasten '  and  the  word  '  Ruhe.' 
"  The  manuscript  which  is  in  evidence  is  in  my  hand- 
"  writing.  At  the  time  I  wrote  that  word,  and  sent  it  up  to 
"  be  put  in  the  paper,  I  did  not  know  of  any  import  what- 
"  ever  attached  to  it." 

This  explanation  finds  corroboration  in  the  testimony  of 
Fricke,  a  witness  for  the  prosecution,  and  formerly  book- 
keeper for  the  Arbeiter  Zeitung,  who  says  (A.,  43,  I,  487, 


52 

ei  seq.):  "  About  the  ist  of  Ma}' there  was  sometimes 
"  almost  a  whole  column  in  the  Arbeiter  Zeitung  occupied 
"  by  notices  of  meetings  of  workingmen  at  different 
"  places  and  halls.  They  would  bring  such  notices  to  the 
"  Arbeiter  Zeitung  and  say  to  Mr.  Spies,  '  put  so  and  so 
"  under  the  column  of  meetings.'  It  was  a  common  thing 
"  for  postal  cards  to  be  received  at  the  office  of  the  Ar- 
"beiter  Zeitung,  and  that  Spies  or  Schwab  would  take  it 
"  and  read  it  over,  and  then  revise  it  or  alter  it,  and  send 
"  it  up  for  publicadon  in  the  letter-box,  or  in  this  column 
"  where  notices  were  published." 

Mr.  Spies  further  says  in  regard  to  the  same  subject 
(A.,  306,  165):  "My  attention  was  next  called  to  the 
"  word  Riihc,  a  little  after  3  o'clock  in  the  afternoon. 
"  Balthazar  Rau,  an  advertising  agent  of  the  Arbeiter 
"  Zeitung,  came  and  asked  me  if  the  word  Ruhe  was 
('in  the  Arbeiter  Zeitung.  I  had  myself  forgotten  about 
"it,  and  took  a  copy  of  the  paper  and  found  it  there. 
"  He  asked  me  if  I  knew  what  it  meant  and  I  said  I  did 
"  not.  He  said  there  was  a  rumor  that  the  armed  sections 
"had  held  a  meeting  the  night  before  and  had  resolved  to 
"  put  in  that  word  as  a  signal  for  the  armed  sections  to  keep 
"  themselves  in  readiness,  in  case  the  police  should  precipi- 
"  tate  a  riot,  to  go  to  the  assistance  of  the  attacked.  I  sent 
"  for  Fischer,  who  had  invited  me  to  speak  at  the  meeting 
"  that  evening,  and  asked  him  if  that  word  had  any  refer- 
"  ence  to  that  meeting. 1  He  said  none  whatever,  that  it  was 
"  merely  a  signal  for  the  bo3-s,  for  those  who  were  armed 
"  to  keep  their  powder  dry  in  case  they  might  be  called 
"  upon  to  fight  within  the  next  days.  I  told  Rau  it  was  a 
"  very  silly  thing,  or  at  least  there  was  not  much  rational 
4'  sense  in  that,  and  asked  him  if  he  knew  how  it  could  be 
i'  managed  that  this  nonsense  would  be  stopped,  how  it 
"  could  be  undone,  and  Rau  said  he  knew  some  persons  who 


53 

"  had  something  to  say  in  the  armed  organizations,  and  I 
"  told  him  io  go  and  tell  them  that  the  word  was  put  in  by 
"  mistake.  Rau  went,  pursuant  to  the  suggestion,  and  re- 
"  turned  to  me  at  5  o'clock.  I  was  not  a  member  of  any 
"armed  section;  I  have  not  been  for  six  j'ears." 

That  the  signal,  Rtihe,  had  no  relation  whatever  to  the 
Haymarket  meeting  will  appear  conclusively  when  we 
come  to  consider  the  Monday  night  meeting.  That  Mr. 
Spies  had  no  knowledge  of  its  meaning  at  the  time  he 
wrote  it  for  insertion  in  the  Arbeiter  Zeitung,  there  is  no 
reason  to  doubt;  that  he  did  not  consent  to  any  action  to 
be  taken  pursuant  to  such  signal,  and  that,  in  fact,  he  did 
all  he  could  to  prevent  its  being  acted  upon  by  those  who 
knew  its  meaning,  appears  from  his  own  testimony, 
which  is  not  contradicted. 


(e.)      Spies''  Haymarket  speech. 

Ontheeveningof  May  4th,  Mr.  Spies  attended  the  Hay- 
market meeting,  was  the  first  of  the  speakers  on  the  ground, 
although  he  did  not  arrive  until  about  half-past  8;  he 
explained  the  tardiness  of  his  appearance  by  saying  that  he 
understood  he  was  to  address  the  meeting  in  German, 
and  expected  that  English  speakers  would  precede  him 
(A.,  299;  N,  33).  After  Mr.  Spies  had  mounted  the 
truck  wagon  near  the  Crane  Bros,  factory,  somebody 
suggested  to  draw  the  wagon  into  the  Haymarket,  to 
which  Spies  replied  that  the  crowd  will  interfere  with  the 
street  traffic.  (A.,  300,  N,  36;  A.,  129,  K,  275.)  Then, 
after  inquiring  for  Mr.  Parsons,  Mr.  Spies  went  in  search 
of  him,  as  already  detailed  in  the  review  of  the  testimony 
in  Mr.  Schwab's  case.  About  ten  minutes  thereafter, 
returning  to  the  wagon,  not  having  found  Parsons,  he 
commenced  speaking  and  spoke  for   about  twenty  min- 


54 

utes.  Directl}'  after  Parsons'  arrival,  he  brought  his  re- 
marks to  a  close,  and  introduced  Parsons. 

Concerning  the  speech  itself,  Mr.  English  read  his 
short-hand  notes,  taken  on  a  tablet  in  his  coat  pocket. 
There  are  occasional  breaks  in  Mr.  English's  notes,  which 
he  could  not  supply;  but  to  give  the  connection  as  fully  as 
may  be  we  will  simply  quote  the  testimony  of  Mr.  En- 
glish as  it  stands  in  the  record  (A.,  129;  K,  276): 

"  Gentlemen  and  fellow-workmen,  Mr.  Parsons  and 
"  Mr.  Fielden  will  be  here  in  a  very  short  time  to  address 
"  you.  I  will  say,  however,  first,  this  meeting  was  called 
"  for  the  purpose  of  discussing  the  general  situation  of  the 
"  eight-hour  strike,  and  the  events  which  have  taken 
"  place  during  the  last  forty-eight  hours.  It  seems  to 
"  have  been  the  opinion  of  the  authorities  that  this  meet- 
"  ing  has  been  called  for  the  purpose  of  raising  a  little 
"  row  and  disturbance.  This,  however,  zvas  not  the  intcn- 
"  tion  of  the  committee  that  called  the  meeting.  The 
"  committee  that  called  the  meeting  wanted  to  tell  you 
"  certain  facts  of  which  you  are  probabl}'  aware.  The 
"  capitalistic  press  has  been  misleading,  misrepresenting 
"  the  cause  of  labor  for  the  last  few  weeks,  so  much  so  " — 
"  there  is  something  here  unintelligible  that  I  cannot 
"  read;  some  of  it  went  off  on  the  side  of  my  pocket; 
"the  next  is:  "Whenever  strikes  have  taken  place; 
"  whenever  people  have  been  driven  to  violence  by  the 
"  oppression  of  their  " — something  unintelligible — "  Then 
"  the  police  " — a  few  unintelligible  words,  then  there  were 
"  cheers — "  But  I  want  to  tell  you,  gentlemen,  that  these 
"  acts  of  violence  are  the  natural  outcome  of  the  degra- 
"  dation  and  subjection  to  which  working  people  are  sub- 
"jected.  I  was  addressing  a  meeting  of  ten  thousand 
"  wage  slaves,  yesterday  afternoon,  in  the  neighborhood 
"  of  McCormick's.     They    did    not   want   me   to    speak. 


55 

"The  most  of  them  were  good,  church-going  people. 
"  They  didn't  want  me  to  speak  because  I  was  a  socialist.. 
"  They  wanted  to  tear  me  down  from  the  cars,  but  I 
"  spoke  to  them  and  tola  them  that  they  must  stick  to- 
"  gether," — some  more  that  is  unintelligible — "  and  he 
"  would  have  to  submit  to  them  if  they  would  stick  to- 
"  gether."  The  next  1  have  is,  "  They  were  not  anar- 
"  chists,  but  good,  church-going  people;  they  were  good 
"  Christians.  The  patrol  wagons  came  and  blood  was 
"  shed."  Some  one  in  the  crowd  said,  "  Shame  on  them ! "' 
The  next  thing  I  have  is,  "  Throwing  stones  at  the  factO' 
"ry;  most  harmless  sport."  Then  Spies  said,  "What 
"did  the  police  do?"  (Some  one  in  the  crowd  said, 
"  Murdered  them.")  Then  he  went  on,  "They  only  came 
"  to  the  meeting  there  as  if  attending  church."  *  *  * 
"  Such  things  tell  you  of  the  agitation."  *  *  * 
"  Couldn't  help  themselves  any  more.  It  was  then  when 
"  they  resorted  to  violence."  *  *  *  "  Before  3'ou 
"  starve."  *  *  *  "  This  fight  that  is  going  on  now  is 
"  simply  a  struggle  for  the  existence  of  the  oppressed 
"  classes."  My  pocket  got  fuller  and  fuller  of  paper,  my 
"  notes  got  more  unintelligible,  the  meeting  seemed  to  be 
"  orderly;  1  took  another  position  in  the  face  of  the 
"  speaker,  took  out  my  paper,  and  reported  openly  during' 
"  all  the  rest  of  the  meeting.  The  balance  of  my  notes  I 
"  have  not  got.  From  what  appears  in  my  report  in  the 
"  Tribune  I  can  give  you  part  of  what  Spies,  Fielden  and 
"  Parsons  said.  It  is,  however,  only  an  abstract  of  what 
"  they  .said.  So  far  as  it  goes  it  is  verbatim,  except  the 
"  pronouns  and  the  verbs  are  changed." 

The  balance  of  Spies'  speech  is  as  follows  (reading) : 
"  It  was  said  that  I  inspired  the  attack  on  McCormick's. 
"  That  is  a  lie.  The  fight  is  going  on.  Now  is  the 
"  chance   to    strike    for    the   existence    of    the   oppressed 


56 

"  classes.  The  oppressors  want  us  to  be  content.  They 
"  will  kill  us.  The  thought  of  liberty  which  inspired 
"  your  sires  to  fight  for  their  freedom  ought  to  animate 
"  you  to-day.  The  day  is  not  far  distant  when  we  will 
"  resort  to  hanging  these  men."  (Applause  and  cries  of 
"  Hang  them  now.")  "  McCormick  is  the  man  who 
"  created  the  row  Monday,  and  he  must  be  held  responsi- 
"  ble  for  the  murder  of  our  brothers."  (Cries  of  "  Hang 
"him.")  "Don't  make  any  threats — they  are  of  no 
"  avail.  Whenever  you  get  ready  to  do  something  do  it, 
"  and  don't  make  any  threats  beforehand.  There  are  in 
"  the  city  to-day  between  forty  and  fifty  thousand  men 
"  locked  out  because  they  refuse  to  obey  the  supreme  will 
"  or  dictation  of  a  small  number  of  men.  The  families  of 
"  twenty-five  or  thirty  thousand  men  are  starving  because 
"  their  husbands  and  fathers  are  not  men  enough  to  with- 
"  stand  and  resist  the  dictation  of  a  few  thieves  on  a  grand 
"  scale,  to  take  it  out  of  the  power  of  a  few  men  to  say 
"  whether  they  should  work  or  not.  You  place  your 
"  lives,  your  happiness — everything,  under  the  arbitrary 
"  power  of  a  few  rascals  who  have  been  raised  in  idle- 
"  ness  and  luxury  upon  the  fruits  of  your  labor.  Will 
"you  stand  that.'^"  (Cries  of  "  No.")  "The  press  say 
"  we  are  Bohemians,  Poles,  Russians,  Germans — that 
"  there  are  no  Americans  among  us.  That  is  a  lie;  every 
"  honest  American  is  with  us.  Those  who  are  not  are 
"  unworth}'  of  their  traditions  and  their  forefathers." 

"  Spies  spoke  fifteen  or  twenty  minutes.  What  I  have 
"  given  here  would  not  represent  more  than  five  or  six 
"  minutes  of  actual  talking." 

We  submit,  with  great  confidence,  to  this  court,  that 
the  reading  of  Mr.  Spies'  speech,  as  above  reported,  dem- 
onstrates the  position  that  he  was  not  counseling,  nor 
even  contemplating,  any  act  of  violence  for  that  occasion. 


57 

That  so  far  from  making  a  speech  in  furtherance  of  a 
conspiracy  to  cause  the  throwing  of  a  bomb  that  night  at 
that  meeting  for  purposes  of  violence,  he  was  in  fact  sim- 
ply commenting  upon  the  then  existing  situation,  and  the 
probable  outcome  thereof,  with  no  thought  of  any  attack 
either  by  or  upon  the  police  then  and  there.  In  other 
words,  there  is  in  this  speech  nothing  in  the  nature  of  an 
incitement  to  violence.  The  facts  that  occurred  after  the 
making  of  this  speech,  and  up  to  the  time  when  the 
meeting  was  interrupted  by  the  descent  of  the  police,  we 
have  already  presented,  in  connection  with  our  observa- 
tions as  to  the  cases  of  Mr.  Schwab,  Mr.  Fielden  and 
Mr.  Parsons. 


(_/'.)      Gilmer'' s  testimony. 

At  this  point  in  their  attempted  case  the  state  intro- 
duced as  a  witness  Harry  L.  Gilmer.  The  character  of 
the  testimonj'  of  this  witness  demands  a  careful  scrutiny 
thereof,  and  we  shall  not  need  to  apologize  to  this  court 
for  any  length  to  which  we  may  carry  our  criticism. 

Mr.  Gilmer  testified  in  effect  (A.,  141-147;  K,  362- 
412),  that  he  went  to  the  Haymarket  meeting,  reaching 
there  about  a  quarter  to  10  o'clock,  on  his  way  home 
from  the  Palmer  House,  where  he  says  he  went  ex- 
pecting to  meet  Governor  Merrill  and  Judge  Cole,  of 
Iowa.  He  stood  near  the  lamp-post  on  the  corner  of 
Crane  Bros.'  alley,  between  the  lamp-post  and  the  wagon 
and  up  near  the  east  side  of  the  wagon  for  a  few 
minutes;  Fielden  was  speaking  when  he  came  to  the 
meeting;  he  stood  there  for  a  few  minutes  looking 
for  a  party  whom  he  expected  to  find  there,  and  then 
stepped  back  in  the  alley  between  the  Crane  Bros. 
building     and     the     building     immediately    south    of    it; 


58 

standing  in  the  alley  and  looking  around,  he  noticed 
parties  in  conversation  directly  across  the  alley  on  the 
south  side  thereof;  some  one  on  the  edge  of  the  side- 
walk said:  "Here  comes  the  police"!  and  there  was 
a  sort  of  a  rush  to  see  the  police  come  up;  a  man 
thereupon  came  from  the  zvagon  dozun  to  the  parties- 
on  the  south  side  of  the  alley,  lit  a  match  and  touched 
ofT  something,  a  fuse  which  commenced  to  fizzle,  and 
the  party  who  held  it  took  two  steps  forward  and  tossed 
it  into  the  street;  he  knew  by  sight  the  man  who  threw 
"  the  fizzing  thing  into  the  street,"  but  did  not  know  his 
name;  he  was  a  man  about  five  feet  ten  inches  high, 
somewhat  full-chested,  with  a  light  sandy  beard,  full 
faced,  with  an  eye  set  somewhat  back  in  the  head,  and 
probably  weighing  i8o  pounds;  he  had  on  a  brown  or 
black  hat;  the  photograph  of  Schnaubelt,  presented  to. 
the  witness,  is  the  man  who  threw  the  bomb  out  of  the 
alley;  Spies  was  the  man  who  came  from  the  wagon 
toward  the  group;  and  Fischer  was  one  of  the  group ;^ 
after  the  bomb  was  thrown  these  parties  immediately  left 
through  the  alley:  witness  stood  still  until  the  firing 
ceased. 

Upon  cross-examinatioti  he  stated  that  he  made  no  out- 
cry at  that  time,  and  did  not  for  some  time  afterwards 
communicate  to  any  person  whatever  what  he  had  seen 
and  heard  upon  that  night,  although  he  had  different 
conversations  about  the  meeting  in  which  he  had  stated 
that  he  had  been  there.  On  the  afternoon  of  the 
ne.vt  day  at  the  city  hall  he  did  state  to  a  Times 
reporter  and  another  man,  that  he  believed  he  could 
identify  the  man  who  threw  the  bomb  if  he  ever  saw  hinv 
again,  but  did  not  at  that  time  detail  the  occurrence; 
from  the  position  which  he  occupied  in  the  alley,  he  could 
not  see  the  wagon,  and  therefore  (//(/  not  see  Spies  get  of 


59 

the  zuagon,  but  that  he  came  from  the  direction  of  the 
wagon,  and  that  he  had  seen  Spies  be/ore  sta>idi)io-  on 
the  sidexvalk  and  talking  with  somebody;  he  was  inclined 
to  think  it  was  Schwab;  he  did  not  run  at  the  time  of  the 
shooting,  but  stood  perfectly  still;  there  were  no  bullets 
coming  in  around  his  locality  in  the  alley;  and  after  it 
was  all  over,  he  backed  out  of  the  alley,  took  a  car  and 
went  home;  there  was  much  excitement  and  talking  about 
the  meeting  upon  the  car  and  elsewhere,  but  he  com- 
municated to  nobody  what  he  had  seen  or  heard;  his 
interview  as  to  these  occurrences  had  been  mostly  with 
detective  James  Bonfield,  but  he  would  not  be  positive  that 
he  had  ever  told  Mr.  Bonfield  that  he  saw  the  man  light 
the  match  (K,  392);  he  had  seen  Spies  and  knew  him 
by  sight  for  a  year  and  a  half,  but  not  by  name, 
had  frequentl}'  seen  and  heard  him  speak  at  public 
meetings,  but  never  inquired  what  his  name  was, 
though  he  had  heard  him  once  at  a  meeting  on  Market 
street,  a  year  ago  last  spring,  and  had  seen  from  the 
paper  afterwards  that  Spies  had  been  one  of  the  speakers 
at  that  meeting.  Witness  was  in  the  city  at  the  time  of 
the  proceedings  before  the  different  coroner's  juries,  who 
investigated  the  cause  of  the  death  of  the  officers  killed 
at  the  Haymarket;  that  the  officers  then  knew  his  name 
and  address,  i)ut  that  they  never  called  upon  him  to  go 
either  before  the  grand  jury  or  the  coroner's  jury.  He 
stated  that  he  detailed  his  experiences  at  the  Haymarket 
to  Mr.  Grinnell  on  the  Sunday  after  the  Haymarket  meeting, 
but  that  he  only  told  Mr.  Grinnell  that  he  believed  he  could 
identify  the  person  who  threw  the  bomb  if  he  saw  him; 
he  thought,  however,  that  he  told  him  he  saw  one 
man  strike  the  match  and  light  the  fuse,  and  another  man 
throw  the  bomb;  he  had  received  money  from  time  to 
time  in   small   sums    from    Bonfield,  but   he   had   not  told 


6o 

any  one  except  the  officers  named  that  he  saw  the  act  of 
lighting  the  bomb  accompHshed;  witness  was  six  feet 
three  inches  in  height  and  could  nearly  see  right  over 
the  head  of  the   man  who   threw  the  bomb. 

This  is  substantially  Gilmer's  testimony.  We  believe 
we  can  demonstrate  that  it  is  absolutely  untrue. 

We  will  demonstrate  from  the  record  (i)  that  Gilmer's 
description  of  the  bomb-thrower  does  not  fit  Schnaubelt; 
(2)  that  August  Spies  did  not  enter  the  Crane  Bros,  alley 
at  the  time  sworn  to;  (3)  that  at  that  very  time  Adolph 
Fischer  was  in  Zepf's  Hall,  more  than  half  a  block  dis- 
tant; (4)  that  the  bomb  was  not  thrown  out  of  the  alley 
at  all,  but  from  the  sidewalk,  on  Desplaines  street  from  a 
point  variously  estimated  from  fifteen  to  forty  feet  south 
of  the  alley  line,  from  behind  a  lot  of  boxes  that  were 
piled  on  the  outer  edge  of  the  sidewalk  next  south  of  the 
lamp-post  which  stood  on  the  south-east  corner  of  the 
alley;  (5)  that  Gilmer's  character  for  truth  and  veracity 
and  his  testimony  are  impeached. 

I.     Schnaubelt's  Height. 

The  record  shows  without  contradiction  that  Schnau- 
belt was  a  man  about  six  feet  three  inches  high  (A.,  303, 
N,  56),  and  therefore  it  would  have  been  a  physical  im- 
possibility for  Mr.  Gilmer  to  see  over  his  head. 

2.     Spies  did  not  enter  the  alley. 

That  Spies  did  not  enter  the  alley  at  all  at  the  time 
testified  by  Gilmer,  but  in  fact  remained  upon  the  wagon 
until  the  order  to  disperse  had  been  given,  and  then  dis- 
mounted therefrom  and  turned  immediately  north,  pro- 
ceeding in  the  direction  of  Zepf's  Hall,  is  proved  by  the 
following  testimony: 


(i.)  August  Spies  himself  so  testifies.  He  says  that 
when  Capt.  Ward  commanded  the  dispersal  of  the  audi- 
ence, he,  Spies,  was  upon  the  wagon  (A.,  303;  N,  53), 
and  that  his  brother  Henry,  together  with  Ernst  Legner, 
stood  by  the  side  of  the  wagon  and  reached  their  hands 
out  and  helped  him  to  dismount;  that  just  as  he  reached 
the  sidewalk  he  heard  the  explosion;  that  when  the 
firing  commenced,  he  pushed  or  was  carried  along  with 
the  people  towards  the  north,  going  into  Zepf's  Hall  in  the 
confusion,  and  afterwards  making  his  way  home;  that  he 
did  not  go  to  the  alley  at  all,  nor  in  the  direction  of  the  alley. 

(2.)  Henry  Spies  (A.,  241,  242;  M,  148,  150)  testifies 
that  when  the  police  commanded  the  meeting  to  disperse, 
his  brother  Angust  was  still  upon  the  wagon,  that  he  was 
standing  by  the  side  of  the  wagon  and  told  August  to 
get  off,  and  he  reached  out  his  hand  and  helped  him 
down;  that  just  as  August  dismounted  from  the  wagon 
some  one  jumped  behind  him  with  a  pistol  which  Henry 
Spies  grabbed,  and  in  warding  oft'  the  pistol  shot  from 
August  received  it  in  his  own  person,  the  ball  passing 
through  the  testicle  in  a  downward  oblique  direction.  The 
direction  of  the  ball,  it  may  here  be  stated,  was 
demonstrated  by  the  production  of  the  clothing  worn  by 
Henry  Spies,  showing  where  the  ball  went  in  and  where 
it  came  out,  and  by  the  positive  testimony  of  Dr.  Thilo, 
who  attended  Henry  Spies  for  this  wound.  (A.,  275.) 
It  is  true  that  Henry  Spies,  directly  after  the  Haymarket 
meeting,  stated  to  the  police  officers  that  he  received  this 
wound  while  standing  in  the  door  of  Zepf's  saloon,  and 
that  it  was  a  stray  shot  from  the  direction  of  the  Hay- 
market  meeting;  but  he  says  frankly  that  the  statement 
was  not  true,  and  was  resorted  to  by  him  to  prevent  his 
own  arrest,  his  brothers  August  and  Chris  having  been 
already  arrested.  That  it  was  not  true  is  physically 
demonstrated  by  the  direction  of  the  wound  itself. 


(3-)  In  this  connection  we  deem  it  proper  to  call  atten- 
tion to  the  fact  that  when  August  Spies  was  first  arrested, 
he  gave  to  the  police  officials  this  same  account  of  his 
movements  on  the  night  of  that  meeting,  and  told  them 
that  Legner  was  with  him,  as  testified  by  Officer  James 
Bonfield  (A.,  27;  I,  349,350);  except  that  Bonfield  says 
that  Spies  stated  that  he  went  through  the  alley  and 
came  out  on  Randolph  street,  after  the  explosion  of  the 
bomb. 

It  further  appears  in  the  record  (i  A.,  4),  that 
Ernst  Legner  was  a  witness  before  the  grand  jury;  and 
that  his  name  was  indorsed  as  one  of  the  witnesses 
for  the  state  on  the  indictment,  but  was  not  used  as 
a  witness  by  the  prosecution.  We  claim,  therefore, 
that  it  follows  as  an  irresistible  conclusion  that  Ernst 
Legner,  when  under  oath,  gave  substantially  the  same 
account  as  to  Spies  being  on  the  wagon  when  the 
police  came  up,  and  his  helping  Spies  to  dismount  from 
the  wagon  at  the  time  of  the  explosion,  that  was  gi%'en  by 
Spies  to  Bonfield;  or  the  state  would  have  had  Legner 
present  and  put  him  upon  the  stand  to  contradict  this 
testimony  of  Mr.  Spies  and  his  brother  Henry.  We 
argue  that  Legner's  testimony  would  have  fully  corrobo- 
rated the  testimony  of  August  Spies  and  his  brother 
Henry  throughout,  or  he  would  have  been  upon  the 
stand  to  contradict  them. 

But,  in  addition  to  this  testimon}'  of  August  and  Henry 
Spies,  that  August  Spies  remained  upon  the  wagon  until 
the  order  of  dispersal  was  given,  and  until  the  very  in- 
stant preceding  the  explosion  of  the  bomb,  and  that  there- 
fore it  was  a  physical  impossibility  that  he  should  have 
gone  from  the  wagon  into  the  alley,  struck,  a  match,  and 
with  it  lighted  the  fuse  of  the  bomb,  we  call  attention  to 
the  following  testimony: 


63 

(4-)  Joseph  Bach  testifies  (A.,  2S0,  281;  M,  404,405) 
that  he  and  Mithicher  were  standing  upon  a  plat- 
form by  the  door  of  the  building  south  of  the  alley,  on 
the  Desplaines  street  east  sidewalk,  their  position  being 
some  six  feet  or  more  from  the  alley;  from  this  ele- 
vation they  could  look,  over  the- heads  of  the  crowd  stand- 
ing upon  the  sidewalk  and  in  the  alley  space,  and  have  a 
distinct  view  of  the  wagon  and  its  occupants,  and  those 
immediately  about  it;  when  the  police  came  up  he 
looked  at  them  and  then  at  the  wagon;  that  he  saw 
Henry  Spies  (to  whom  he  had  shortly  before  spoken, 
when  he  himself  went  up  near  the  wagon,  and  then  re- 
turned to  his  point  of  observation),  and  noticed  August 
Spies  attempt  to  get  from  the  wagon  to  the  sidewalk; 
that  immediately  thereafter  he  turned  to  go  away,  and 
had  taken  but  one  or  two  steps  when  the  bomb  exploded; 
-il  was  at  the  instant  before  the  explosion  of  the  bomb  that 
he  noticed  Aiis^iist  Spies  irctting  off  the  wagon,  and 
Henry  standing  with  his  arm  up  to  help  him  down;  that 
he  did  not  see  August  Spies,  shortly  before  the  explosion 
of  the  bomb,  dismount  from  the  wagon  and  go  to  the  al- 
ley near  which  he  stood. 

(5.)  Max  Mitlacher,  a  brother-in-law  of  Bach,  who  was 
with  him  at  the  time  (A,  284-85),  corroborates  Bach  in 
every  particular.  He  says  (Vol.  M,  430)  that  he  saw, 
after  the  police  came  tip,  Fielden  and  Spies  standing  upon 
the  wagon,  and  saw  Spies  jump  down  from  the  wagon, 
on  the  east  side,  to  the  sidewalk,  and  that  he  saw  Henry 
Spies  reach  up  and  help  August  dismount,  though  Hen- 
ry's back  was  towards  him  and  he  did  not  see  his  face, 
but  saw  his  hat;  and  that  he  did  not  see  August  Spies 
leave  the  wagon  in  advance  and  come  to  the  alley. 

(6.)  John  Holloway  (A.,  22g  et  seq.)  says  he  stood  on  the 
corner  of    the    alley,   against    the    lamp-post,    when    the 


64 

police  came  (M,  58) ;  he  looked  at  the  wagon,  when  the 
command  to  disperse  was  given  (M,  61);  he  did  not 
observe  anybody  leaving  the  wagon  fj-ior  to  the  appearance 
of  the  police. 

(7.)  Sleeper  T.  Ingram,  a  workingman  in  the  employ  of 
Crane  Bros.,  living  at  home  with  his  parents  (A.,  2S6,. 
287),  says  he  was  upon  the  steps  of  Crane  Bros.'  estab- 
lishment, immediately  east  of  the  wagon  and  but  a  few 
feet  from  it,  when  the  police  came  up;  Fielden  and  Spies 
were  on  the  wagon  at  that  time  (M,  449);  as  Fielden 
made  the  remark  that  they  were  peaceable.  Spies  ttirned 
around  and  started  to  go  off  the  wagon;  he  reached  his 
left  hand  down  to  be  assisted,  stooped  and  jumped,  and 
had  no  more  than  got  to  the  sidewalk  when  the  bomb 
exploded.      (M,  451.) 

(8.)  Conrad  Messer  (A.,  208)  testified  that  when  the 
police  came  up  and  the  command  to  disperse  was  given,  he 
saw  both  Fielden  and  Spies  on  the  wagon  (L,  40c),  and 
that  Spies  left  the  wagon  about  the  same  time  that'^Fielden 
did,  perhaps  two  or  three  seconds  before;  that  he  saw 
Spies  on  the  wagon  after  the  captain  commenced  to  give 
the  command  for  the  dispersing  of  the  meeting  ( L,  401). 

(9.)  August  Krumm  testifies  (A.,  210:  L, 414, 416)  that 
he  and  a  friend  of  his,  named  Albright,  were  in  the 
alley,  near  the  mouth  of  it,  and  near  the  building  to  the 
south,  at  the  time  the  police  came  up;  a  short  while  before 
the  police  came  up  he  himself  struck  a  match  and  lighted 
his  pipe,  and  held  it  while  Albright  also  lighted  his  pipe; 
that  no  other  match  was  lighted  nor  was  any  fuse  lighted 
in  that  alley  at  that  time;  that  he  did  not  see  Spies  come 
toward  that  alley  nor  into  it  at  any  time  that  evening. 

(10)  William  Albright  (A.,  217,  218)  corroborates  this 
testimony  of  Krumm  in  every  particular. 

(11.)    William  Murphy  (A.,  255)  says  that,  five  or  ten 


65 

minutes  before  the  police  arrived,  he  climbed  upon  the 
wagon  to  look  for  a  friend  whom  he  supposed  to  be  in  the 
crowd,  and  remained  on  the  wagon  until  he  heard  the  word 
"disperse";  there  were  about  six  persons  in  the  wagon 
when  he  got  up;  no  one  got  down  from  the  wagon  before 
he  himself  dismounted. 

(i2.)  Adolph  Tennes  (A.,  259;  M,  269)  says  that  at 
the  time  the  officers  came  upon  the  meeting,  he  stood  about 
four  or  five  feet  south  of  the  wagon;  that  as  soon  as  he 
heard  the  order  to  disperse  given,  he  started  to  run;  and 
that  at  the  the  time  he  started  to  run  August  Spies  zvas 
still  on  the  wagon. 

(13.)  Mr.  Fielden  testifies  that  Spies  was  at  his  side 
on  the  wagon  when  Ward  was  talking  with  him.  (A.,  26S ; 
M,  318.) 

It  is  thus  demonstrated,  by  a  conclusive  preponderance 
of  testimony,  that  Mr.  Spies  did  not  leave  the  wagon 
until  the  order  to  disperse  had  been  given;  it  is  therefore 
impossible  that  he  should  have  stood  on  the  sidewalk  at 
the  side  of  the  wagon  in  conversation  with  somebody 
before  Gilmer  went  into  the  alley.  The  fact  is,  Gilmer 
said  on  his  direct  examination  that  Spies  came  down  from 
the  wagon  into  the  alley  and  lighted  the  bomb  (A,,  141; 
K,  363).  But  upon  cross-examination,  he  stated  that 
at  the  time  Spies  came  into  the  alley,  he,  Gilmer,  was 
standing  about  twelve  or  fourteen  feet  from  the  mouth  of 
the  alley,  and  was  forced  to  admit  that  it  was  physically 
impossible  for  him  to  have  seen  the  wagon  from  that 
point;  finding  himself  thus  cornered,  he  said  Spies  did 
not  get  down  off  of  the  wagon,  but  came  from  towards 
the  wagon,  where  he  had  seen  him  standing  on  the  side- 
walk, before  he,  Gilmer,  went  into  the  alley  (A.,  144;  K, 
378-3S0).  It  is  further  conclusively  shown  by  the  testi- 
mony of  the  above  witnesses  that  Spies  did  not  enter  the 


66 

alley  at  all,  did   not   there  light   a    match   and  with  that 

match  light  a  bomb  or  the  fuse,  and  that  the  story  of  Mr. 

Gilmer,  so  far  as  it  attempts  to  implicate  Spies  in  that 
occurrence,  is  absolutely  untrue. 

3.     Fischer  was  at  Zepf's  Hall. 

But  neither  was  Fischer  there.  Fischer  was  at  that 
moment  in  Zepf's  Hall,  to  which  point  he  had  gone  some 
little  time  before.  In  support  of  this  assertion,  we  call 
attention  to  the  following  testimony: 

(i.)  Otto  Wandray  testifies  (A,  247,  248;  Vol.  M,  190, 
196)  that  he  met  Fischer  at  the  Haymarket  meeting  be- 
tween 9  and  10  o'clock;  that  after  listening  to  the  speak- 
ing for  about  half  an  hour  they  went  to  Zepf's  Hall, 
where  they  had  a  glass  of  beer,  sitting  at  a  table  close 
behind  and  a  little  north  of  the  stove.  At  the  time  of  the 
explosion  of  the  bomb,  Fischer  zvas  at  Wandray^ s  side  at 
Zepfs  Hall;  when  he  and  Fischer  entered  Zepf'«  saloon, 
he  looked  at  the  clock  and  it  was  then  a  little  after  10 
o'clock. 

(2.)  As  to  Wandray's  testimony,  we  cite,  as  a  matter 
of  confirmation,  that  Lieut.  John  D.  Shea,  of  the  police 
force,  a  witness  for  the  State  (A.,  60;  J,  72),  admitted 
that  he  had  a  conversation  with  Fischer  while  under 
arrest  at  police  headquarters,  wherein  Fischer  stated  to 
him  that  on  the  evening  of  May  4th  he  was  at  Zepf's 
Hall  at  the  time  of  the  explosion  of  the  bomb,  in  com- 
pany with  Wandray;  that  directly  thereafter  Wandray 
was  scut  for  by  Shea  and  examined,  attd  stated  that 
Fischer  ivas  in  the  hall  with  him  at  the  time  of  the  ex- 
plosion. 

(3.)  Mrs.  Lizzie  May  Holmes  (A.,  262:  M,  287,  288) 
swears  that  she  went  in  company  with  Mrs.  Parsons,  Mr. 


67 

Parsons  and  Mr.  Brown,  from  the  Haymarket  meeting  to 
Zepf  s  Hall  shortly  before  the  explosion  of  the  bomb,  and 
was  in  Zepf's  Hall  with  those  parties  when  the  bomb 
exploded;  that  afti.T  entering  the  hall,  she  sazu  Fiichcr 
sitting  at  the  tabic  pirther  north,  and  saw  him  there  from 
time  to  time  thereafter,  up  to  the  explosion  of  the  bomb, 
and  does  not  think  that  he  left  the  building  at  all  in  that 
interval. 

(4.)  Thos.  Brown  testifies  (A.,  238,  239;  M,  124,  125) 
that  he  went  to  Zepf's  Hall  on  the  night  of  the  Hay- 
market  meeting,  while  Fielden  was  speaking,  in  com- 
pany with  Mr.  and  Mrs.  Parsons  and  Mrs.  Holmes; 
when  the  party  went  into  the  saloon,  witness  savj  Fischer 
there;  this  was  about  four  or  five  minutes  before  the 
bomb  exploded;  witness  did  not  see  Fischer  go  out  of 
the  room  in  that  interval. 

(5.)  Albert  R.  Parsons  testifies  (A.,  314,  315;  N,  115) 
that,  after  moving  the  adjournment  of  the  Haymarket 
meeting,  he  went,  in  company  with  Mr.  Brown,  Mrs. 
Parsons  and  Mrs.  Holmes,  to  Zepf's  saloon,  as  before 
stated;  that  after  entering  the  saloon,  he  noticed  Mr. 
Fischer  sitting  at  one  of  the  tables,  and  spoke  to  him, 
sitting  at  the  table  himself  a  few  moments,  and  then  went 
around  to  where  the  ladies  were;  that  almost  instantly 
thereafter  he  saw  the  flash  of  the  explosion  of  the  bomb, 
followed  by  the  roar  of  that  explosion,  and  almost  simul- 
tanously  saw  and  heard  the  volley  of  revolvers. 

By  the  testimony  of  these  witnesses,  therefore,  Mr. 
Gilmer's  statement  that  he  was  almost  certain,  in  fact, 
quite  sure,  that  Fischer  was  one  of  the  group  in  the 
alley  connected  with  the  bomb-throwing,  is  completely 
refuted,  and  the  fact  that  Fischer  was  at  the  time  of  the 
explosion  in  Zepf's  Hall,  and  not  in  Crane  Bros.'  alley,  is 
established,  without  other  contradiction  than  this  opinion 
of  Gilmer. 


68 


4-  The  bomb  was  not  thrown  from  the  alley. 

We  further  maintain  that  the  evidence  overwhelm- 
ingly shows,  without  other  contradiction  than  that  of 
Gilmer  himself,  that  this  bomb  was  in  fact  not  thrown 
out  of  the  alley  at  all.  We  call  attention  in  support  of 
this  position  to  the  following  testimony: 

( I.)  Officer  Louis  Haas,  one  of  the  witnesses  of  the 
state  (A.,  128;  K,  252,  253),  testified  that  he  was 
attending  the  meeting  in  citizen's  clothes,  and  that  at  the 
time  of  the  throwing  of  the  bomb  he  was  standing  in  the 
center  of  the  street,  but  within  five  or  six  feet  of  the 
wagon;  that  he  saw  the  bomb,  which  came  from  about 
jive  or  six  feet   south  of  the  corner  of  the  alley. 

(2.)  Paul  C.  Hull,  a  reporter  of  the  Daily  News,  also  a 
witness  of  the  state  (A.,  116),  testifies  that  he  was 
standing,  at  the  time  of  the  explosion  of  the  bomb,  upon 
the  landing  at  the  head  of  the  stairway  on  the  brick 
building  at  the  north-west  corner  of  Randolph  and  Des- 
plaines  streets;  that  directly  opposite  to  where  he  stood 
was  the  pile  of  boxes  testified  of  as  south  of  the  lamp- 
post, on  the  east  side  of  Desplaines  street;  that  he  saw 
the  bomb  in  its  progress  through  the  air  before  its  ex- 
plosion, and,  according  to  his  recollection  (K,  124), 
it  seemed  to  come  from  about  ffleen  to  twenty  feet  south 
of  Crane's  alley,  flying  over  the  heads  of  the  police.  On 
cross-examination  he  further  testified  (A.,  118;  K,  141) 
that  his  recollection  is  that  the  bomb  struck  the  ground 
about  on  a  line  with  the  south  line  of  the  alley,  and  that 
it  apparently  fell  north  from  the  point  where  he  first  saw 
it  in  the  air. 

(3.)  H.  E.  O.  Heinemann,  a  reporter  for  the  Chicago 
Tribune,   another    witness    for    the    State,    testifies    (A., 


^9 

126;  K,  235),  that  at  the  time  of  the  explosion  of  the 
bomb  he  was  on  the  east  side  of  the  sidewalk  of 
Desplaines  street,  about  half  way  between  Crane  Bros.' 
alley  and  Randolph  street.  That  he  saw  the  bomb  or 
burning  fuse  rise  out  of  the  crowd,  and  that  it  rose  very 
near  the  south-east  corner  of  the  alley. 

On  behalf  of  the  defendants,  the  testimony  as  to  the 
point  from  which  the  bomb  was  thrown  was   as   follows: 

(4.)  Barton  Simonson  (A.,  178,  179;  L,  71  et  seq.) 
testified  that  at  the  time  the  police  came  up,  and  in 
fact  during  substantially  the  entire  meeting,  he  stood 
upon  the  stairway  of  the  building  at  the  north-west 
corner  of  Randolph  and  Desplaines,  about  half  way  up 
the  stairs,  which  brought  his  head  probably  twenty 
feet  from  the  ground,  and  gave  him  a  clear  view  over 
the  heads  of  the  audience;  that  directly  after  the  com- 
mand to  disperse  had  been  given  he  saw  the  bomb  come 
up  from  a  -point  nearly  twenty  feet  south  of  the  south  line 
of  Crane's  alley,  from  about  the  center  of  the  sidewalk, 
on  the  east  side  of  the  street,  from  behind  some  boxes. 

(5.)  Ludwig  Zeller  testified  (A.,  184;  L,  149, 150),  that 
he  stood  near  the  lamp-post  on  the  alley,  and  after  the  order 
to  disperse  was  given,  turned  to  walk  south  to  Randolph 
street.  As  he  turned  and  started  south  he  saw  the  lighted 
fuse  go  through  the  Tsivc  from  six,  eight  or  ten  feet  south  of 
the  lamp;  that  it  went  in  a  north-westerly  direction  in 
the  midst  of  the  police,  and  was  followed  immediately  by 
the  explosion.  Upon  cross-examination  (A.,  185;  L,  159) 
he  stated  more  particularly  that  he  was  standing  at  the 
momeitt  the- bomb  jwas  thrown  some  five  or  six  feet  south 
■of  the  alley,  and  saw  the  lighted  fuse  about  eight  or  ten 
feet  soicth  of  him. 

(6.)  Fredk.  Liebel  (A.,  188, 1S9;  L,  201-203)  says  that 
he    also    was    standing   near    the    lamp-post,    and    when 


70 

the  police  came  up  and  the  order  to  disperse  was  given 
turned  to  go  south  and  get  out  of  the  crowd,  and  as  he 
was  proceeding  south  saw  the  lighted  fuse,  which  at  the 
time  he  took  to  be  the  stump  of  a  lighted  cigar,  thrown 
from  the  sidewalk,  at  a  point  which  he  took  to  be  near 
midway  between  the  alley  and  Randolph  street.  And  he 
says  that  the  bomb  went  in  a  north-westerly  direction, 
and  then  exploded. 

(7.)  Dr.  James  D.  Taylor  (A.,  191, 192 ;  L,  230,  et  seq.), 
after  stating  that  he  stood  over  the  curbstone  at  the 
intersection  of  the  street  and  alley  on  the  north  side  of 
Crane  Bros.'  alley,  sa3's  that  after  the  police  and  the 
order  to  disperse  was  given,  he  saw  the  bomb  thrown. 
He  says  he  saw  the  bomb  in  the  air,  somewhere  between 
twenty  and  forty  feeet  south  of  the  alley,  and  the  matt 
■who  threw  it  stood  beyond  a  number  of  boxes  which 
stood  south  nf  the  lamf-post ;  that  he  revisited  the  ground 
the  next  morning  after  the  occurrence,  and  saw  the 
boxes  still  there;  that  he  did  not  see  the  man  who 
threw  the  bomb,  and  when  the  bomb  was  thrown  could 
see  nothing  but  his  head;  that  when  he  first  saw  the 
bomb  he  took  it  to  be  a  boy's  fire-cracker;  that  it  circled 
through  the  air  in  a  north-westerly  direction,  and  alighted 
between  the  first  and  second  lines  of  police,  a  little  west 
of  the  center  of  the  street,  and  perhaps  a  little  south  of 
the  line  of  the  alley. 

(8.)  William  Urban  (A.,  201;  L,  344,  et  seq.)  states 
that  he  saw  something  like  a  fire-cracker  in  the  air, 
followed  by  the  explosion,  and  then  the  pistol  firing;  that 
what  looked  to  him  like  a  fire-cracker  must  have  started 
from  fifteen  to  eighteen  feet  south  of  the  lamf-post  at 
Crane'' s  alley;  that  it  went  very  fast,  made  a  kind  of  a 
circle,  going  north-westerly,  and  about  one  or  two  seconds 
after  he  first  observed  it  he  heard  the  explosion. 


71 

(p.)  August  Krumm  (A,2io;  L,  415), after  explaining 
that  he  stood  near  the  mouth  of  the  alley  and  next  the  build- 
ing on  the  south,  states  that  he  saw  something  looking  like 
an  extinguished  match  go  through  the  air  and  drop  about 
the  middle  of  the  street,  which  he  says  must  have  started 
from  about  twenty  feet  south  of  the  alley;  was  about 
twelve  feet  up  in  the  air  when  he  saw  it,  and  that  it  did 
not  start  and  could  not  have  started  out  of  the  alley;  that 
he  saw  the  streak  of  fire,  and  right  after  that  heard  the 
explosion  of  the  bomb. 

(10.)  William  Albright  (A.,  217;  L,493)  swears  that 
he  was  with  Krumm,  as  detailed  by  the  latter,  and  that  the 
bomb  was  not  lighted  in  nor  thrown  from  the  alley  -vhere 
they  stood. 

(11.)  Joseph  Bach  and  (12)  Max  Mitlacher  whose 
testimon}'  we  have  already  considered  upon  another  point, 
both  testify  that  immediately  before  the  explosion  the}' 
were  looking  towards  the  wagon,  and  that  they  did  not 
see  any  object  thrown  out  of  the  alley  into  the  street.  (A., 
281,  M,  407,408;  A.,  285;  M,  433.) 

(13.)  John  Holloway  (A.,  230,  231),  who  stood  against 
the  lamp-post  at  Crane's  alley  (M,  58), and  was  looking  at 
the  speaker's  wagon  at  the  time  of  the  dispersal  and  until 
the  explosion  of  the  bomb  (M,  59,  60),  says  he  is  sure  noth- 
ing came  out  of  the  alley  while  he  stood  there.  (M,  63.) 
In  the  nature  of  things,  if  the  bomb  had  been  thrown  from 
out  of  the  alley  it  could  not  have  escaped  his  attention. 

(14.)  George  Koehler  testifies  (A.,  218;  Vol.  L,  508- 
518)  \kvaX  he  stood  on  the  north-west  corner  of  Randolp 
and  Desplaines  streets  when  the  police  came  up,  and  saw 
the  bomb  come  from  the  east  side  of  the  street  from  oppo- 
site where  he  stood  from  the  middle  of  the  sidewalk  and 
flying  in  a  north-westerly  direction. 

(15.)    Edward  Lehnert  (A,  234;  Vol.  M,  89,  90),  after 


72 

stating  that  he  stood  on  the  west  side  of  Desplaines  street, 
about  thirty  paces  north  from  Randolph,  and  twenty 
paces  south  from  opposite  the  wagon,  states  that  from 
that  point  he  saw  a  streak  of  fire  which  looked  like  a 
-stump  of  cigar  in  the  air,  which  he  learned  later  was  the 
'"bomb,  and  that  it  came  from  about  tzuenty  faces  south  of 
■  the  alky,  according  to  his  best  judgment,  and  went  north- 
"west,  and  struck  the  ground  in  the  middle  of  the  street, 
:a  little  south  of  the  alley. 

(16.)  Finally,  John  Bernett  (A.,  292;  M,  483,  (?/ 5fY/. ) 
testifies  as  follows:  That  he  is  not  acquainted  with  any 
of  the  defendants,  although  he  had  heard  some  of  them 
speak;  was  not  a  socialist,  communist  or  anarchist;  was 
at  the  Haymarket  meeting  at  the  time  the  bomb  exploded; 
that  at  the  time  of  the  explosion  he  stood  about  thirty- 
eight  feet  south  of  Crane's  alley;  that  on  the  Wednesday 
preceding  his  testimony  he  had  made  a  careful  exami- 
nation of  the  ground  to  find  out  the  locality  where  he 
stood;  that  he  saw  the  man  who  threw  the  bomb,  and 
saw  the  bomb  go  through  the  air;  that  its  direction  was 
west  and  a  little  north;  that  the  man  who  threw  the 
bomb  was  right  in  front  of  Bernett  at  the  tifne,  aud  was 
about  BernetCs  size,  having  a  mustache  with  no  chin 
beard.  (We  would  here  observe,  that  Bernett  was 
a  man  of  about  five  feet  nine  inches  in  height.) 
When  shown  Mr.  SchnaubeWs  photograph  and  asked 
if  he  recognized  that  as  being  the  man  who  threw 
the  bomb,  he  said  that  the  photograph  had  been  shown 
him  by  Mr.  Furthman  about  two  weeks  before 
his  testifying,  and  that  it  was  not  the  picture  of  the 
bomb-thrower,  and  that  he  had  so  told  Mr.  Furthman. 
On  cross-examination  (A.,  293)  he  stated  that  he  had  had 
different  interviews  with  the  representatives  of  the  prose- 
cution and  had  told  Capt.  Schaack  and  Mr.  Grinnell  that 


73 

the  man  who  threw  the  bomb  was  in  front  of  the  witness, 
and  he  could  not  tell  how  he  did  look;  that  he  told  Mr. 
Furthman  that  he  thought  the  bomb  was  thrown  from 
nboiit  fifteen  steps  south  of  the  alley,  counting  a  step  at 
about  two  and  a  half  feet;  that  on  that  night  there  was 
3.  pile  of  boxes  south  of  the  lamp-post  which  was  on  the 
corner  of  the  alley;  that  he  went  to  the  central  station 
on  the  7th  day  of  May,  and  talked  to  Officer  Bonfield  in 
the  presence  of  Mr.  Grinnell;  that  he  did  not  think  that 
at  that  time  he  said  the  bomb  was  thrown  from  behind 
the  boxes,  nor  did  he  think  that  some  weeks  ago  he  stated 
it  was  thrown  from  a  point  twenty  to  twenty-five  feet 
south  of  the  alley;  did  not  remember  how  many  feet  he 
■did  state  the  distance  was,  but  thinks  he  has  it  right  in  his 
present  testimony.  On  re-direct  examination  (A.,  294], 
he  stated  that  he  told  Capt.  Schaack  that  the  man  that 
threw  the  bomb  was  but  little  larger  than  himself, 
Jiad  a  mustache  and  no  chin  whiskers,  and  that  he  has 
said  so  all  the  time;  that  he  had  never  measured  the  dis- 
tance from  the  alley  to  the  place  where  he  stood  on  that 
night  until  the  Wednesday  preceding  his  testimony;  that 
when  the  bomb  was  thrown  he  saw  the  motion  of  throw- 
ing; saw  the  fire  right  from  the  hand;  followed  the  light 
with  his  eye,  and  saw  the  light  where  the  bomb  exploded, 
heard  the  explosion,  saw  the  flash  of  the  bomb,  and  then 
ran  away. 

Here  we  have  Bernett,  an  absolutely  disinterested  and 
unimpeachable  witness.  We  say  unimpeachable,  because 
it  developed  upon  the  cross-examination  of  this  witness 
that  he  had  made  substantially  the  same  statement  over 
and  again  to  the  representatives  of  the  state — to  Mr. 
Grinnell,  Capt.  Schaack  and  Officer  Bonfield;  and  if  it 
had  been  possible  to  impeach  Mr.  Bernett,  we  assume 
that   the   state  would   have   made  that   attempt,  knowing 


74 

as  long  in  advance  as  they  did  substantially  what  his 
testimony  would  be.  No  such  attempt  was  made. 
There  was  an  effort  made  to  show  that  he  had  esti- 
mated the  distance  south  from  the  alley  of  the  bomb- 
thrower  differently  at  different  times;  but  this  ver}'  evi- 
dence shows  that  he  had  always  located  the  bomb- 
thrower  south  of  the  alley,  and  on  the  east  sidewalk  of 
Desplaines  street. 

But  in  this  direct  issue  of  veracity  between  Bernett  on 
the  one  side  and  Gilmer  on  the  other,  we  find  Gilmer  ab- 
solutely unsupported  by  a  single  other  witness  in  the 
record;  while  Bernett  is  conclusively  corroborated  hy  fif- 
teen witnesses,  directly  b}'  three  of  the  state's  witnesses,. 
Haas,  Hull  and  Heinemann,  and  nine  witnesses  for  the 
defendants,  namely,  Simonson,  Zeller,  Liebel,  Taylor,  Ur- 
ban, Krumm,  Lehnert,  Albright  and  Koehlcr,  and  inferen- 
tially  by  the  testimony  of  Bach,  Mitlacher  and  Holloway. 
As  between  the  two,  therefore,  no  man  who  is  not  wilfully 
determined  to  disregard  all  the  rules  of  evidence  can  hesi- 
tate in  according  credence  to  the  statement  of  Mr.  Ber- 
nett, and  in  rejecting  absolutely  the  story  of  Gilmer. 


5.     Gilmer's  impeachment. 

But  in  addition  to  all  this  Gilmer  was  successfully  im- 
peached. Nine  citizens  of  Chicago,  called  to  the  witness 
stand  in  behalf  of  the  defendants,  testified  unequivocally 
that  they  knew  Harry  L.  Gilmer,  were  acquainted  with 
his  general  reputation  for  truth  and  veracity  in  the  neigh- 
borhood where  he  resided,  and  among  his  neighbors  and 
acquaintances,  that  that  reputation  was  bad,  and  that  they^ 
xvoiild  not  believe  him  under  oath.  These  witnesses  were 
as  follows: 


■  (I.)  Lucius  M.  Moses  (A.,  194,  195;  L,  268-273), 
a  grocer,  sixty-four  years  old,  residing  at  301  West 
Randolph  street,  in  which  neighborhood  Gilmer  had  beer* 
living  for  a  number  of  months. 

(2.)  Mrs.  B.  P.  Lee  (A.,  195,  196;  L,  279),  residing 
at  295  West  Randolph  street,  and  keeping  a  boarding- 
house. 

(3.)  John  G.  Brixey  (A.,  199),  living  at  297  West 
Randolph  street,  to  whom  for  a  time  Gilmer  lived  as  next- 
door  neighbor.  Mr.  Brixey  had  known  Mr.  Gilmer  for 
a  considerable  period  of  time,  and  on  two  occasions  had 
lived  adjacent  to  him.  And  on  cross-examination  he  gave 
the  names  of  a  number  of  parties  whom  he  had  heard 
speak  of  Gilmer's  reputation  for  veracity. 

(4.)  John  Garrick  (A.,  200),  residing  at  279  Fulton 
street,  formerly  chief  deputy  sheriff  under  Sheriff  Kern, 
and  a  man  of  propert)',  in  whose  house  and  in  whose 
neighborhood  Gilmer  lived  at  one  time. 

(5.)  Mrs.  MaryGrubb  (A.,  227),  residing  at  22  North 
Ann  street,  and  in  whose  house  Gilmer  at  one  time  lived 
for  a  number  of  weeks. 

(6.)  Phineas  H.  Adams  (A.,  250),  a  machinist,  en- 
gaged in  business  with  his  brother  at  31  South  Canal 
street,  who  at  one  time  lived  in  the  same  block  with 
Gilmer. 

(7.)  Edward  H.  Castle  (A.,  258)  residing  at  51  Wal- 
nut street,  seventy-five  years  old,  who  had  been  a  resi- 
dent of  Cook  county  since  1839,  of  whom  Gilmer  had 
one  time  been  a  tenant,  and  who  is  a  man  of  large 
property,  as  appears  from  the  testimony. 

(8.)  H.  S.  Howe  (A.,  259),  sixty-two  years  old,  and 
in  the  undertaking  business. 

(9.)  John  W.  Gage  (A.,  292),  residing  at  216  S. 
Paulina    street,  in   the   painting   and  wall   paper  business. 


76 

forty-five  years  of  age,  employing  all  the  way  up  to  forty 
men  in  his  business.  On  cross-examination  Gage  stated 
that  Gilmer  lived  next  door  to  him  about  four  months. 

It  is  true  that  an  effort  was  made  to  meet  this  impeach- 
ment of  the  reputation  of  Mr.  Gilmer  by  the  introduction 
of  various  witnesses  by  the  slate.  The  witnesses  intro- 
duced included  eight  brought  from  Des  Moines,  Iowa,  to 
testify  as  to  Mr.  Gilmer's  reputation  while  he  lived  in 
that  city,  about  ten  years  ago,  which  had  not  been  at- 
tacked; and  about  an  equal  number  of  citizens  of  Chi- 
cago. Concerning  this  attempt  to  sustain  Mr.  Gilmer's 
reputation,   we   have  a  few  suggestions  to  submit. 

First.  Judge  Cole  and  Governor  Merrill,  of  Iowa, 
were  among  the  witnesses  produced  by  the  state.  Both 
of  them  testified  that  they  zi'cre  not  in  Chicago  on  the 
evening  of  May  ^th  at  the  Palmer  House  or  elseivhere; 
that  they  were  not  expecting  to  be  in  Chicago  at  that 
time\  that  they  had  no  appointment  in  Chicago  at  or 
about  that  time  to  meet  Mr.  Gilmer,  or  to  meet  anybody 
else;  and  that  they  had  never  communicated  zuith  Mr. 
Gilmer;  that  they  had  never  had  an}^  correspondence  with 
him,  nor  made  any  such  appointment  with  him;  thus  es- 
tablishing conclusively  that  when  Mr.  Gilmer  stated  upon 
the  stand,  that  he  went  to  the  Palmer  House  on  the  night 
of  May  4th  expecting  there  to  meet  Mr.  Merrill  and 
Judge  Cole,  he  was  stating  an  invention  instead  of  a 
fact;  the  purpose  doubtless  being  to  impress  the  jury 
with  his  supposed  consequence  and  the  dignity  of  his  re- 
lations among  men. 

Second.  Concerning  these  witnesses,  and  all  of  the  wit- 
nesses from  Iowa,  we  beg  further  to  suggest  that  they 
were  substantially  all  of  them  occupying  a  different  zvalk 
of  life  from  that  in  which  Mr.  Gilmer  moved,  and  who, 
substantiallv,    all    of    them,    admitted   that    they    did  not 


knozv  his  reputation  zvhile  living  in  lozva  among  his  imme- 
diate neighbors  and  acquaintances  for  truth  and'  veracit}-, 
but  simply  that  they  had  been  residents  of  the  same  city 
where  they  had  known  him  slightly,  and  where  they  had 
heard  no  special  question  about  his  reputation.  Judge 
Cole,  for  example,  simply  lived  in  the  same  city,  and  had 
had  Gilmer  do  a  little  painting  for  him;  but  beyond  that 
practically  knew  nothing  about  him. 

Third.  So  as  to  the  witnesses  called  from  Chicago  to 
testify  as  to  his  reputation.  They  were  in  the  main 
worthy  citizens,  but  they  were  men  who  confessedly, 
as  brought  out  on  their  respective  cross-examinations > 
did  not  commingle  in  the  society  of  which  Mr.  Gilmer 
was  a  member,  did  not  move  in  the  same  walk  of 
life,  had  never  lived  in  the  same  neighborhood  in  ivhich  he 
lived;  and  most  of  them  admitted  that  in  fact  they  never  had 
known  where  Gilmer  did  Uveal  any  time.  Not  one  of  them 
knew  him  in  the  intimacy  of  daily  association  in  a  neigh- 
borly wa}^,  these  parties  at  the  most  being  able,  as  they  were 
forced  to  admit  on  their  respective  cross-examinations,  to 
state  that  they  were  members  of  the  Union  Veteran  Club 
along  with  Mr.  Gilmer,  or  members  of  Battery  D,  and 
had  casually  met  him  in  those  associations  and  nowhere 
else,  and  talked  with  others  in  those  associations  who  had 
met  him  in  like  manner;  associations  in  which  he  would 
naturally  seek  to  be  esteemed,  and  where  he  would 
naturally  be  upon  his  good  behavior  for  purely  selfish 
considerations.  When,  however,  we  enter  the  circle  of 
his  neighbors,  daily  acquaintances  and  associates  in  work 
and  business,  living  near  where  he  lived,  sometimes  in 
the  same  house  or  under  the  same  roof,  we  find  that 
he  was  a  man  whose  reputation  could  be  most  suc- 
cessfully impeached;  while  not  a  single  witness  was 
produced  by  the  State  out  of   the  list  of  the  man's  neigh- 


78 

bors  and  acquaintances  to  speak  a  word  in  his  behalf. 
Was  there  any  design  on  the  part  of  the  representatives 
of  the  State  in  thus  hmiting  their  investigation  as  to  Mr. 
Gilmer's  reputation?  And  was  there,  likewise,  any,  de- 
sign  upon  their  part  to  possibly  impose  upon  the  jur}-  by 
the  dignity  of  the  men  whom  they  would  produce,  who 
were  ready  to  swear  that  they  considered  his  reputation 
good,  although  they  did  not  know  what  it  was? 

We  understand  the  correct  rule  in  reference  to  attempts 
to  impeach  or  support  testimony  of  witnesses  to  be  that 
laid  down  by  this  court  in  the  case  of  Frye  v.  The  Bank 
of  Illinois,  II  111.,  367,  as  found  in  the  opinion  of  the 
court  at  page  379,  where  it  is  said:  "The  proper  ques- 
"  tion  to  be  put  to  a  witness  to  impeach  another  is,  whether 
"  he  knows  the  general  refutation  of  the  person  sought 
"  to  be  impeached  among  his  neighbors  for  truth  and  ve- 
"  racity.  If  this  question  be  answered  affirmatively,  the 
«  witness  may  then  be  inquired  of  as  to  what  that  reputa- 
*'  tion  is,  and  whether  from  that  reputation  he  would  be- 
"  lieve  him  on  oath."  And  a  number  of  authorities  are 
cited  in  support  of  the  rule  thus  announced. 

In  the  light  of  this  rule  of  law,  we  insist  that  the  effort 
thus  made  to  sustain  Mr.  Gilmer  utterly  failed,  for  the 
reason  that  not  a  single  neighbor,  not  a  single  acquaint- 
ance accustomed  to  associate  with  him  in  daily  life,  and 
commingle  with  his  neighbors  and  daily  associates,  was 
produced;  that  the  cross-e.xamination  of  every  witness 
called  by  the  state  in  this  behalf  conclusively  shows  that 
they  knew  nothing  of  the  general  refutation  of  Gilmer 
for  truth  and  veracity,  and  that  the  reputation  to  which 
those  witnesses  pretended  to  testify  did  not  come  from 
Gilmer's  neighbors  and  associates,  and  that  it  was  error 
for  the  court  to  admit  the  testimony  of  such  witnesses 
over  the  objection  and  exception  of  the  defendants. 


79 

But  further  than  lliat,  the  defendants  called  to  the 
stand  as  a  witness  W.  A.  S.  Graham,  a  reporter  for  the 
Chicago  Times  (Abst.,  321,  322,  Vol.  N,  144,  149).  He 
said  that  he  had  occupied  the  position  of  reporter  upon 
the  Times  for  twenty-five  months,  and  had  been  a  news- 
paper man  for  eight  years;  that  he  knew  Harry  L. 
Gilmer  since  the  5th  day  of  May,  the  day  following  the 
Haymarket  riot;  that  on  that  day  he  saw  Gilmer  in  the 
corridor  of  the  basement  in  the  City  Hall,  just  outside 
the  police  headquarters;  that  he  had  a  conversation  with 
Gilmer  on  that  occasion  in  regard  to  what  he  saw  at  the 
Haymarket,  and  who  threw  the  bomb. 

At  this  point  Mr.  Gilmer  was  recalled  by  the  defendants 
ior  further  cross-e.xamination,  which  developed  the  fact 
(A.,  321,  322;  M,  145-47)  that  Mr.  Graham  was  the 
reporter  whom  Gilmer  mentions  in  his  cross-examination 
{A.,  143;  K,  370)  as  one  of  the  parties  to  whom  he  stated, 
on  May  5th  or  6th,  at  the  central  station,  that  he  believed 
he  could  identify  the  man  who  threw  the  bomb  if  he  ever 
saw  him  again.  He  further  stated  that  he  did  not  say  to 
Mr.  Graham  in  that  conversation  that  he  saw  the  man 
throw  the  bomb,  but  his  back  was  toward  Gilmer,  and 
he  could  not  see  him  very  well,  and  that  he  believed  he 
had  whiskers;  he  did  not  think  that  he  said  at  that 
time  and  place  that  he  saw  the  man  light  the  fuse  and 
throw  the  bomb — did  not  say  it  was  a  man  of  medium 
size,  and  that  he  saw  him  light  the  fuse  andXhvow  the 
bomb;  that  he  had  no  such  conversation  with  Mr.  Gra- 
ham. 

Mr.  Graham  then,  further  examined,  testified  that  in 
the  conversation  referred  to  Gilmer  stated  to  Graham  that 
he  (Gilmer)  saw  the  man  light  the  fuse  and  throw  the 
bomb,  and  added,  "  I  think  I  could  identify  him  if  I  saw 
•"him."     Graham  proceeded    substantially  as  follows:  "I 


8o 

"  asked  him  what  kind  of  a  looking  man  he  was,  and 
"  Gilmer  said  '  he  was  a  man  of  medium  height,  and  I 
"  think  he  had  whiskers,  and  wore  a  soft,  black  slouch 
"  hat,  but  his  back  was  turned  towards  me.''  And  to  the 
"  best  of  my  recollection,  Gilmer  said  the  man  had  dark 
"  clothes.  He  said  nothing  about  anybody  else  in  that  con- 
"  nectionP 

Upon  cross-examination  Mr.  Graham  stated:  "  I  had 
"  this  conversation  about  4  o'clock  in  the  afternoon 
"  of  May  5th.  I  talked  with  him  about  three  or  four 
"  minutes.  He  said  nothing  about  there  being  more  than 
'  one  man  at  that  location,  a  knot  of  men,  or  any- 
"  thing  of  that  kind;  he  said  that  one  man  lighted  the 
'■'■fuse  and  threw  the  bomb;  he  did  not  say  anything  about 
"  how  it  was  lighted,  whether  with  a  match  or  a  cigar;  I 
"  did  not  ask  him  that;  he  said  he  was  standing  in  Crane's 
"  alley  when  it  was  done." 

Mr.  Graham  is  an  unimpeached  witness;  it  cannot  be 
conceived  that  he  had  any  interest — particularly  when  his 
relations  to  the  newspaper  and  the  condition  of  public 
opinion  and  sentiment  at  the  time  he  testified  are  consid- 
ered— to  pervert  his  testimony  in  the  service  of  the  ac- 
cused. If  his  testimony  is  true,  then  Gilmer's  is  false.- 
Not  onl}'  does  Graham  contradict  Gilmer  as  to  the  sub- 
stance of  the  conversation  at  the  central  station,  on  the  after- 
noon of  May  4th,  but  if  Graham  tells  the  truth,  then  the 
version  of  affairs  which  Gilmer  gave  at  the  time,  when  the 
events  were  fresh  in  his  mind,  is  absolutely  irreconcilable 
with  the  version  given  by  him  as  a  witness  upon  the  stand. 
Upon  the  stand  he  swears  that  the  man  had  whiskers,  and 
he  pretended  to  recognize  a  photograph.  To  Graham  he 
stated  that  the  man  had  his  back  toward  him,  and  would 
only  say  that  he  thought  he  had  whiskers,  and  he  be- 
lieved he  could  recognize  him  if  he  saw  him  again.   Upon 


8i 

the  witness  stand  he  stated  that  he  saw  August  Spies 
hght  the  fuse,  and  a  totally  different  man  throw  the  bomb, 
while  still  another  of  the  defendants  stood  by,  watching 
the  operation.  To  Graham  he  stated  that  he  saw  the 
man  li^ht  the  fuse  and  thnnv  the  bomb,  speaking  of  a 
single  transaction  b}-  one  individual,  and  making  no  pre- 
tense whatever  that  other  parties  were  at  the  time  pres- 
ent or  interested  in  this  operation.  He  stated  to  Gra- 
ham that  he  could  identify  the  man  who  threw  the  bomb, 
but  did  not  mention  anything  about  the  man  who  lighted 
the  fuse  of  the  bomb,  although  he  claimed  (A.,  146;  K, 
394)  that  he  had  knozun  Spies  by  sight  for  a  year  and  a 
half,  and  had  very  frequently  seen  and  heard  him  speak 
at  public  meetings.  If  the  story  told  by  Gilmer  upon  the 
stand  were  true,  could  he  have  given  to  Graham  the  ver- 
sion of  the  affair  to  which  Graham  testifies? 

If  corroboration  of  Graham  upon  this  point  is  needed, 
it  is  to  be  found  in  the  fact  that  in  his  opening  statement 
to  the  jury,  after  having  had  repeated  interviews  with 
Gilmer,  as  the  record  shows,  and  having  advised  him- 
self thoroughly  of  the  story  which  Gilmer  was  prepared 
to  tell,  Mr.  Grinnell,  in  reference  to  the  bomb-throwing, 
did  not  give  the  detail  of  this  story  as  told  by  Gilmer  upon 
the  stand,  (i  A.,  32;  O,  91.)  Is  it  creditable  that  Mr. 
Grinnell  willfully  suppressed  matters  within  his  knowl- 
edge in  reference  to  the  details  attending  the  throwing  of 
the  bomb?  If  Mr.  Grinnell  knew,  at  the  time  he  made  his 
opening  statement,  that  Mr.  Gilmer  would  testify  that 
August  Spies  lighted  the  fuse  of  the  bomb,  that  Rudolph 
Schnaubelt  threw  the  bomb,  and  that  Adolph  Fischer 
stood  by  while  this  was  being  done,  he  certainly  would, 
as  in  fairness  bound  to  do,  have  so  stated  in   his    opening. 

The  effort  of  the  state,  therefore,  to  show  that  the 
Ha\market    bomb   was  thrown  by  Rudolph  Schnaubelt, 


the  fuse  thereof  lighted  b}'  August  Spies,  and  that  Adolph 
Fischer  stood  by  while  the  bomb  was  lighted  and  thrown, 
res'.s  upon  the  unsupported  testimony  of  a  single  witness, 
whose  subsequent  conduct  in  keeping  this  information  to 
himself  cannot  be  explained  consistently  with  any  theory 
of  honesty  of  purpose  or  sincerity  of  utterance;  who  stands 
impeached  upon  this  record  as  to  his  general  reputation 
for  truth  and  veracity,  and  who  is  contradicted  by  a  score 
■of  unimpeached  witnesses  as  to  the  most  vital  and  material 
points  in  his  statement.  We  think  we  might  safely  dis- 
miss this  branch  of  the  case  as  absolutely  and  finally  dis- 
posed of. 

Taking  it  altogether,  there  is  an  absolute  want  of 
credible  evidence,  which  connects  Mr.  Spies  with  the  act 
of  throwing  the  bomb  at  the  Haymarket,  which  shows 
or  tends  to  show  that  he  had  any  knowledge  of,  or  gave 
his  aid  or  assistance  to  any  plan  for  using  violence  at  that 
-or  an}'  other  meeting  by  or  against  anybod}-. 


Adolph  Fischer. 

The  testimony  shows  that  Adolph  Fischer  was  a  com- 
positor on  the  Arbeiter  Zeitung,  of  which  Spies  and  Schwab 
were  the  editors.  On  the  morning  of  May  4th,  he 
caused  the  printing  and  distribution  of  the  circular  calling 
the  Haymarket  meeting  for  that  evening,  and  requested 
Mr.  Spies  to  speak.  As  before  stated,  when  Spies' 
attention  was  called  to  the  form  of  the  circular,  he  insisted 
that  the  line  "Workingmen,  Arm  Yourselves,"  etc.,  should 
be  stricken  out,  and  Fischer  caused  this  to  be  done. 
Fischer  was  at  the  Haymarket  during  a  part  of  the  time 
as  an  auditor,  but  took  no  part  in  the  meeting  itself,  and 
as  shown   by  the  evidence  heretofore  considered  in  con- 


83 

mection  with  ihe  case  of  Mr.  Spies  and  the  testimony  of 
Harry  L.  Gilmer,  he  was,  in  fact,  in  Zepf's  Hall  at  the 
time  of  the  explosion  of  the  bomb.  No  utterance  of 
Fischer's  suggesting  or  urging  violence  upon  that  even- 
ing, either  in  speech  or  print,  is  in  this  record.  The  evi- 
dence not  only  shows  that  he  was  not  present  when  the 
act  which  resulted  in  the  death  of  Mathias  J.  Degan  was 
committed,  but  it  absolutely  fails  to  show  that  he  did  or 
said  anything  by  way  of  aiding,  encouraging,  advising, 
abetting  or  assisting  the  performance  of  that  act. 

There  is  but  little  that  remains  to  be  said  about  this 
branch  of  the  case  as  to  Mr.  Fischer,  the  evidence  upon 
these  points  having  been  already  so  fully  considered  in 
presenting  our  views  as  to  the  cases  attempted  to  be  made 
against  others  of  the  plaintiffs  in  error. 

But  it  is  proper  that  we  should  here  enter  upon  the 
consideration  of  another  fact  proved  in  this  case,  upon 
which  the  state  relies  as  entitling  it  to  claim  that  this  con- 
viction of  Adolph  Fischer  shall  be  sustained. 


The  West  Lake  Street  Meeting  Conspiracy. 

It  is  claimed  that  on  the  night  of  Monday, "May  3,  1886, 
there  was  a  meeting  held  at  54  West  Lake  street, 
attended  by  Fischer  and  Engel  of  the  plaintiffs  in  error,  at 
which  a  conspiracy  was  entered  into,  and  at  which  the 
calling  of  the  Haj-market  meeting  was  resolved  upon. 
In  our  view,  the  testimony  as  to  this  meeting  was  irrele- 
vant to  the  issue  to  be  determined  in  this  case;  and  when 
the  testimony  of  the  witnesses  who  speak  as  to  that 
meeting  was  introduced,  it  came  in  subject  to  our  objc- 
tion,  and  was  retained  in  the  record  as  against  our  motion 
to  exclude.     We  shall   present   briefly  an  outline  of  that 


84 

testimony,  and  then  suggest  to  the  court  the  grounds  of 
our  objection  to  it  and  our  motion  for  its  exclusion. 

The  State  introduced  as  witnesses,  who  testified  in  re- 
gard to  this  Monday  night  meeting,  Godfried  Waller, 
who  presided  at  the  meeting,  Bernard  Schrade  and  Gus- 
tave  Lehmann,  who  were  present,  and  Greif,  the  pro- 
prietor of  the  hall.  The  leading  witness  was  the  in- 
former, Godfried  Waller.  He  says  (A.,  4:  I,  52,  el  scq:\ 
he  went  to  the  meeting  pursuant  to  an  advertisement 
which  he  saw  in  the  Fackel  (the  Sunday  issue  of  the 
Arbeiter  Zeitung)  of  May  2d.  A  translation  into  English 
of  that  advertisement  is  as  follows:  "  Y — Come  Monday 
night;"  which  notice  he  says  meant  a  call  for  the  armed 
men  of  the  various  groups  to  meet  at  54  West  Lake  street, 
Greif 's  Hall.  Reaching  the  building  about  8  r.  m.,  it  was 
found  that  the  halls  were  all  fully  occupied  with  working- 
men's  meetings,  and  that  the  only  place  where  a  meeting 
could  be  held  pursuant  to  this  notice  was  in  the  basement. 
He  says  he  called  the  meeting  to  order  at  about  half-past 
eight,  and  that  there  were  some  seventy  or  eighty  present, 
while  the  testimony  of  Schrade,  Lehmann  and  Greif 
shows  that  there  were  in  attendance  not  more  than 
about  thirty  to  forty. 

Describing  the  occurrences  of  the  meeting,  this  wit- 
ness says  that  there  was  first  some  talk  about  si.\  men 
supposed  to  have  been  killed  at  McCormick's;  that  there 
were  present  circulars  headed  "  Revenge,"  and  treating 
about  that  occurrence;  then  Mr.  Engel  stated  a  resolu- 
tion passed  by  a  prior  meeting  of  the  north-west  side 
group,  and  it  was  afterwards  resolved  by  the  meeting  there 
present  to  adopt  the  plan  of  action  reported,  which  was  to 
the  effect,  that  if  the  word  "  Ruhe  "  should  be  published 
under  the  heading  Brief kasten  (letter-box),  of  the  Arbeiter 
Zeitung,  it  should  be  a  signal  for  the  armed  men  to  meet. 


8< 


The  north-west  side  group  had  determined  upon  Wickt- r 
parte  as  their  meeting  place  in  that  case.  A  committee 
should  observe  the  movement  in  the  city,  and  if  a  conflict 
should  occur,  the  committee  should  report  to  the  armed 
men,  who  should  then  storm  the  police  stations  by  throw- 
ing a  bomb,  and  should  shoot  down  everything  that 
would  come  out  or  in  their  way.  The  police  station  on 
North  avenue  was  referred  to,  but  no  other,  the  action 
be\ond  that  to  be  determined  by  circumstances. 

This  program  having  been  agreed  upon,  as  this  witness 
states,  he  himself  then  suggested  that  there  ought  to  be  a 
meeting  of  workingmen  called  for  Tuesday  morning  on 
Market  square.  Fischer  said  that  would  be  a  mouse 
trap  and  that  the  meeting  should  be  on  the  Haymarket  in 
the  evening.  It  was  then  resolved  that  the  meeting  should 
be  held  at  8  p.  m.  at  the  Haymarket;  and  it  was  stated 
that  the  purpose  of  the  meeting  was  to  cheer  up  the 
workingmen  so  that  they  should  be  prepared  in  case  a 
conflict  would  happen.  Fischer  was  commissioned  to 
call  the  meeting  through  hand-bills;  he  went  away  to 
order  them,  but  came  back  after  half  an  hour  and  said  the 
printing  establishment  was  closed.  It  was  said  that  the 
armed  men  should  not  participate  in  the  meeting  on  the 
Haymarket.  Asked  in  direct  examination,  "  What  was 
''  said,  if  anything,  as  to  what  should  be  done  in  case 
"  the  police  should  attempt  to  disperse  the  Haymarket 
"  meeting  ?"  he  replied,  "  There  was  nothing  said  about 
■"  the  Haymarket.  There  zvas  nothing  expected  that  the 
^'  folice  zvotdd  get  to  the  Haymarket.''''  Those  present 
were  representatives  from  the  west,  south  and  north  side 
groups.  A  committee,  composed  of  one  or  two  from 
each  group,  was  to  be  sent  to  the  Haymarket;  but  this 
committee  was  not  onlj'  to  observe  the  movement  on  the 
Haymarket  square,  but  in  different  parts  of  the  city;  he 


86 

only  knew  one  member  of  the  proposed  committee, 
named  Kraemer;  if  a  conflict  happened  in  the  daytime, 
the  committee  was  to  cause  the  publication  of  the  word 
Ruhe;  while  if  it  happened  at  night,  they  were  to  report 
to  the  members,  personally,  at  their  homes.  He  did  not, 
himself,  on  the  4th  of  May,  understand  why  the  word 
Ruhe  was  published,  as  it  was  to  be  inserted  only  in  the 
event  that  a  revolution  had  broken  out.  Fischer  first 
mentioned  the  word  Ruhe.  Schnaubelt  was  present  at 
the  Lake  street  meeting,  and  said  that  the  resolution 
adopted  should  be  communicated  to  members  of  the 
organization  in  other  localities,  so  that  the  movement 
should  commence  in  other  places  also.  This  same  witness- 
further  stated  that  this  plan  of  operations  introduced  at 
the  meeting  at  54  West  Lake  street,  by  Mr.  Engel,  wa* 
a  plan  which  Engel  had  proposed  at  a  meeting  of  the 
north-west  side  group  on  Sunday  morning,  May  2d,  at  its- 
meeting-place  on  Emma  street,  at  which  meeting  he  says- 
both  Fischer  and  Engel  were  present. 

On  cross-examination  this  witness  states  that,  at  the 
meeting  at  Emma  street  and  at  that  meeting  at  Greif's 
Hall,  Mr.  Engel  stated  that  the  plan  proposed  by  him 
was  to  be  followed  only  in  the  event  of  a  police  at- 
tack, and  that  the  workingmen  should  only  defend  them- 
selves if  thus  attacked  by  the  police.  He  repeated  posi- 
tively that  nothing  was  said  as  to  any  action  to  be  taken 
at  the  Haymarket;  that  they  zvere  not  to  do  anything- 
at  the  Haymarket  square;  that  the  plan  was  that  they 
were  not  to  be  present  there  at  all.  They  did  not  think 
the  police  xvould  conic  to  the  Haymarket ;  no  frefarations 
zvere  made  for  meeting  any  -police  attack  there.  He  fur- 
ther slated  that  on  the  night  of  May  4th  he  was  with  Fischer, 
walking  about  the  streets  in  the  neigborhood  of  the  Hay- 
market for  a  time,  and  then  went  to  a  meeting  of  the  fur- 


nilure-workers'  union  at  Zepf's  Hall,  and  was  there  when 
the  bomb  exploded;  that  Fischer  and  himself  walked  to- 
gether over  to  the  Desplaines  station,  where  the  police  were- 
mounting  five  or  six  patrol  wagons,  upon  which  the  wit- 
ness said,  "  I  suppose  the}'  are  getting  ready  to  drive  out 
"  to  McCormick's,  so  that  they  might  be  out  there  early 
"in  the  morning;"  to  which  Mr.  Fischer  assented.  He 
stated  that  the  principal  purpose  of  the  Haymarket  meet- 
ing was  to  protest  against  the  action  of  the  police  at  the 
riot  at  McCormick's  factory,  and  that  while  he  was  with 
Fischer  at  the  Haymarket  nothing  was  said  between 
them  about  preparations  to  meet  an  attack  by  the  police^ 
and  Fischer  did  not  ask  him  why  he  was  not  at  Wicker 
park.  He  admitted  that  he  had  received  various  sums  of 
money  from  Capt.  Schaack,  and  that  his  wife  also  had 
received  moneys. 

Bernard  Schrade,  testifying  as  to  the  same  meeting 
(A.,  9  to  12)  says,  when  he  reached  the  meeting 
in  the  basement.  Waller  was  presiding,  and  explained 
what  had  been  spoken  of  prior  to  his  coming;  Waller 
stated  that  so  manj-  men  had  been  shot  at  McCormick"s 
by  the  police,  and  that  a  mass-meeting  was  to  be  held  at 
Haymarket  square,  and  that  they  should  be  prepared  in 
case  the  police  should  go  beyond  their  bounds  and  attack 
them;  that  he  heard  nothing  about  assembling  in  other 
parts  of  the  city;  that  circulars  headed  "  Revenge  "' 
were  distributed;  that  he  was  present  at  the  meeting  on 
Emma  street  on  the  Sunday  previous,  and  that  in  that 
meeting  it  was  suggested  in  effect  that  there  might  be 
trouble  after  the  ist  of  May,  in  which  event  they  were  to 
help  one  another — that  if  they  should  get  into  a  conflict 
with  the  police  they  should  mutually  aid  one  another,  and 
that  the  north-western  group  should  meet  at  Wicker 
park  in  the  event  of  a  police  attack,  to  defend  themselves 


88 

as  well  as  the}-  could;  but  that  nothing  ivas  siid  about 
dviianiitc,  and  the  zvord  "  stuff''''  zvas  not  used,  and  that 
nothing- was  said  about  telegraph  wires;  that  it  was  sug- 
gested that  in  case  of  an  outbreak,  it  would  be  desirable 
to  cripple  the  etlectiveness  of  the  firemen  by  cutting  their 
hose.  He  says  further,  that  he  heard  nothing  whatever 
about  the  word  Rnhe  in  the  meeting  at  54  West  Lake 
street,  and  that  he  did  not  see  it  in  the  Arbeiter  Zeitung. 
Upon  cross-examination  he  stated  that  notliins;  zuas  said 
at  any  of  the  meetings  about  dynamite  or  bombs,  and 
nothing  was  said  about  a  meeting  at  any  particular  time 
to  throw  bombs;  that  it  was  not  agreed  to  throw  bombs 
at  the  Haymarket  meeting;  that  while  at  that  meeting 
he,  himself,  had  no  bomb,  and  didn't  know  dynamite  if  he 
should  see  it;  that  he  knew  of  no  one  who  was  going  to 
take  a  bomb  to  that  meeting;  that  he  was  at  the  meeting, 
and  when  he  left  it  everything  was  quiet;  that  he  did  not 
anticipate  any  trunhle  there,  and  that  he  left  the  Hay- 
market  only  on  account  of  the  approach  of  the  storm. 

Thomas  Greif,  the  proprietor  of  Greif's  hall,  54  West 
Lake  street,  says  (A.,  24,  25)  that  on  Monday  evening. 
May  3d,  a  man  rented  the  basement  for  a  meeting,  and 
told  Greif,  "  if  the  Y  folks  come,  to  tell  them  to  go  down- 
stairs." Witness  had  to  go  down-stairs  once  to  tap  the 
beer.  There  were  two  men  standing  on  the  stairs  talking 
together:  there  were  twenty-five  or  thirty  men  present 
when  he  was  down  there  at  about  9  o'clock. 

Gustaf  Lehmann  (^A.,  73),  testified  that  he  attended 
this  meeting  at  54  West  Lake  street,  on  the  even- 
ing of  May  3d,  reaching  there  at  a  quarter  of  9;  but 
Lehmann  could  give  no  account  of  the  occurrences  in  the 
meeting,  for  the  reason,  as  he  states,  that  he  was  deputed 
to  step  outside  and  see  that  there  was  no  eavesdropping 
b\-  persons  going  down  the  front  way  to  the  water-closet, 


who  had  to  pass  by  from  the  door  opening  into  the  area 
way  from  the  basement.  He  said,  however,  that  he  went 
into  the  meeting  twice,  and  on  one  occasion  heard  Fischer 
say  that  he  was  going  to  have  some  handbills  printed. 

This  is  the  entire  testimony  of  the  state  as  to  the  Mon- 
day night  meeting.  Our  position  in  reference  to  it  is  this: 
that  if  it  establishes  a  conspiracy  at  all,  it  was  not  a  con- 
spiracy which  contemplated  or  provided  for  the  throwing 
of  a  bomb  or  the  use  of  any  violence  by  any  of  the  co- 
conspirators at  the  Ha3'market  meeting  on  the  night  of 
May  4th;  and  that,  therefore,  the  introduction  of  this 
testimony  was  improper,  as  not  being  relevant  to  the 
issue  which  was  under  consideration;  and  that  it  was 
erroneous,  as  having  a  manifest  tendency  to  prejudice  the 
jur}-  and   thus  injure  the  plaintiffs  in  error. 

This  testimony  moreover  was  allowed  to  come  in  and  to 
have  full  force  as  against  all  of  the  plaintiffs  in  error, 
although  no  effort  was  made  to  show  that  any  of  them, 
other  than  Fischer  and  Engel,  were  present  at  either  the 
Emma  street  meeting  or  the  West  Lake  street  meeting, 
save  possibly  a  slight  attempt  in  that  direction  as  to  Lingg, 
which  we  shall  consider  hereafter.  In  other  words,  the 
plaintiffs  in  error,  other  than  Fischer  and  Engel,  were 
compelled  to  meet,  in  the  minds  of  the  jury,  the  full 
impression  of  this  testimony  over  their  objection  and  ex- 
ception (A.,  4;  1,  57),  and  a  motion  to  exclude  the  same 
was  likewise  overruled  (A.,  S:  I,  106). 

Our  understanding  of  the  law  is,  that  when  a  conspiracy 
lo  do  an  unlawful  act  is  proved  and  an  unlawful  act 
within  the  purview  of  the  conspiracy  is  subsequently  done 
by  one  of  the  conspirators  in  pursuance  of  the  common 
design,  then  all  of  the  conspirators  who  are  parties  to  the 
original  design  are  equally  liable  with  the  doer  of  the 
deed. 


9° 

If  this  be  a  correct  statement  of  the  rule  of  law  as  ap- 
plicable to  such  cases,  and  we  think  it  will  not  be  seriously 
questioned,  then  it  is  incumbent  upon  the  state,  when  at- 
tempting to  establish  the  guilt  of  a  conspirator  not  en- 
gaged in  the  very  act  itself  as  an  accessor}'  before  the  fact,, 
to  show,  in  addition  to  the  fact  that  there  was  a  con- 
spiracy to  do  an  unlawful  act: 

First.  That  the  accused  was  a  party  to  such  con- 
spirac}-. 

Second.  That  the  unlawful  act  charged  was  committed 
"in  furtherance  of  the  original  design,"  and  "in  the 
attempt  to  execute  the  common  purpose." 

Third.  That  such  act  was  done  by  one  identified  as  a> 
party  to  the  conspiracy,  or  by  the  procurement  of  one 
of  sucli  parties,  "  in  prosecution  of  the  common  object." 

As  to  each  of  these  points,  we  understand  the  burden- 
is  upon  the  prosecution  to  make  a  case  beyond  any  reas- 
onable doubt  by  competent  testimony.  Even  if  a  con- 
spiracy were  proved  and  an  unlawful  act  were  done  by 
one  of  the  conspirators,  \et  the  conspirators  would  not 
be  responsible  unless  that  act  was  done  in  pursuance  of 
the  conspiracy,  and  "  in  the  attempt  to  e.xecute  the  com- 
mon purpose,"  and  was  within  the  "  natural  and  probable 
consequences  that  may  arise  from "  such  execution.  la 
other  words,  if  a  co-conspirator  should,  after  the  forma- 
tion of  the  conspiracy,  commit  a  different  crime,  acting; 
in  that  behalf  upon  his  own  responsibility,  and  without 
consultation  with  his  associates,  he  alone  must  bear  the 
consequences  of  his  evil  deed,  and  cannot  involve  his 
associates  in  the  penalty. 

Let  us  test  the  evidence  now  under  consideration  by 
these  rules. 


91 


I.  6V.V  of  the  plaintiffs  in  error  zvcrc  not  parlies  to  the 
conspiracy. 

Only  two,  or  at  the  very  most,  three,  of  the  plaintiffs 
in  error,  are  shown  to  have  had  any  knowledge  of. 
or  to  have  yielded  any  acquiescence  to,  the  program 
or  plan  of  operations  agreed  upon  at  the  meeting 
at  54  West  Lake  street.  Before  the  testimony  con- 
cerning that  meeting  could  be  competent  as  against 
plaintiffs  in  error,  other  than  those  present,  it  was  incum- 
bent upon  the  state  to  show,  by  legal  evidence,  some 
actual  connection  between  the  other  plaintiffs  in  error  and 
that  meeting,  either  by  pre-arrangement  and  consent  to  the 
proposed  scheme,  or  by  subsequent  acquiescence  and  par- 
ticipation in  the  design.  Not  only  had  no  such  evidence 
been  introduced  in  this  case  up  to  the  time  the  testimony 
of  Waller  and  Schrade  was  introduced,  and  received 
over  the  objection  of  the  plaintiff's  in  error,  but  in  fact  no 
legal  evidence  was  adduced  in  the  entire  trial,  which  con- 
nects the  plaintiffs  in  error  other  than  Fischer  and  Engel, 
save  perhaps  Lingg,  with  the  West  Lake  street  meeting, 
or  the  designs  then  and  there  adopted.  The  state  failed 
to  show,  and  certainly  it  failed  to  show  beyond  a  rea- 
sonable doubt,  that  the  accused  other  than  Fischer  and 
Engel  were  parties-  to  the  conspiracy,  and  as  to  them 
one  of  the  essential  requirements  of  guilt  on  the  ground 
of  the  West  Lake  street  conspiracy  fails. 

II.  The  thr Giving  of  the  bomb  at  the  Hayniarkcl  ivas 
absolutely  foreign  to  the  original  design. 

The  design  itself  was  absolutely  foreign,  in  legal 
contemplation,  to  the  Ha3'market  tragedy.  Whatever 
may  be  said  of    the  idea  of   the   parties  associated  in   the 


92 

West  Lake  street  meetin<r,  it  is  evident  that  they  did  not 
have  in  view  the  throwing  of  bombs  by  individual  mem- 
bers of  their  groups,  upon  their  individual  judgment,  but 
that  they  were  providing  for  concerted  action  in  the 
contingency  of  an  unlawful  attack  b}'  the  police  upon 
vvorkingmen,  and  that  in  the  event  of  such  contingency 
the  conspirators  were  to  be  notified  in  a  certain  manner. 
The  evidence  further  shows  that  the  meeting  of  Tues- 
da}'  night  was  not  at  all  within  the  general  scope  of  the 
plan  agreed  upon.  In  fact,  that  date  was  too  near  at 
hand  to  allow  of  the  carrying  out  of  the  details  of  their 
own  plan,  which  contemplated,  according  to  the  testimony, 
the  communication  with  bodies  outside  of  Chicago.  The 
witnesses  further  swear  that  after  this  general  plan  of 
operations  had  been  discussed,  adopted  and  disposed  of, 
the  suggestion  was  then  made  that  there  ought  to  be  a 
meeting  of  laboring  men  to  protest  against  the  con- 
duct of  the  police  at  the  McCormick  riot;  it  was  dis- 
tinctl}'  agreed  that  the  members  of  this  association  should 
not  be  present;  there  was  no  expectation  at  the  Mon- 
day night  meeting  that  there  would  be  any  pohce  dis- 
turbance or  interference  at  the  proposed  Tuesday  night 
meeting.  There  was  no  plan  or  arrangement  for  any  act 
io  be  done  by  tlie  conspirators  or  any  of  tlieni  on  Tuesday 
night  at  tlie  proposed  meeting. 

On  the  contrary,  it  appears  that  only  a  committee 
should  observe  the  movements  in  tlie  city  generally,  and 
that  when  trouble  should  arise  in  the  daytime  they  should 
cause  the  publication  of  the  word  "Ruhe";  if  at  night, 
they  should  notify  the  conspirators  at  their  homes.  If 
thus  notified,  then  they  should  meet  in  certain  places  and 
proceed  by  concerted  action. 

Nothing  of  the  kind  was  done.  Though  the  word 
^'  Ruhe "  appeared    in    the    Arbeiter    Zeitung,  as    above 


shown,  still  there  is  no  evidence  that  any  of  the  conspira- 
tors acted  upon  it,  that  they  met  pursuant  thereto  in  their 
appointed  meeting  places:  Wicker  park,  etc.;  or  that 
they  proceeded  to  attack  any  station  or  march  down  to 
the  heart  of  the  city  to  come  to  the  rescue  of  a  body  of 
attacked  strikers.  According  to  the  arrangement  at  the 
West  Lake  street  meeting,  the  conspirators  ought  to  have 
been  notified  at  once,  when  the  police  attacked  the  Hay- 
market  meeting.  This  was  not  done;  tw  part  of  the 
design  alleged  to  have  been  agreed  upon  on  Monday 
night  was  carried  out.  But  somebody  threw  a  bomb 
into  the  ranks  of  the  police.  If  he  was  a  member 
of  that  conspiracy — of  which  we  claim  there  is  no  proof 
in  the  record — then  he  acted  in  direct  opposition  to  the 
plan  agreed  upon,  he  disregarded  the  directions  of  his  asso- 
ciates, he  defeated  their  objects,  and  his  act  was  as  much 
his  individual  act,  as  if  he  had  been  a  total  stranger  to  the 
conspiracy. 

As  it  appears  from  the  testimon}'  of  the  informers,  that 
there  was  no  expectation  of  violence  at  the  Ha3'market 
meeting,  and  no  provision  therefor,  as,  on  the  contrary,  it 
was  expressly  agreed,  that  the  conspirators  should  not 
attend  or  do  anything  at  the  same,  it  cannot  be  main- 
tained that  the  crime  charged  was  within  the  "  natural 
and  probable  consequences"  that  might  arise  from  the 
carrying  into  execution  of  the  original  design. 


III.  There  is  no  credible  evidence  that  the  bomb  was 
thrown  by  a  party  to  the  conspiracy. 

The  only  attempt  made  by  the  state  to  show  that  the 
bomb  was  thrown  by  a  member  of  the  conspiracy  is  the 
testimony  of  Harry  L.  Gilmer.  We  have  demonstrated 
in  the  preceding  pages  that  the  overwhelming  preponder- 


94 

ance  of  the  evidence  absolutely  refutes  Gilmer's  testimony; 
that  the  bomb  was  not  thrown  out  of  the  alley  at  all,  but 
from  a  point  variously  estimated  as  between  fifteen  and 
thirty-five  feet  south  of  the  alley,  that  Gilmer's  descrip- 
tion of  the  bomb-thrower  as  a  man  of  five  feet  eight,  nine 
or  ten  inches  in  height,  does  not  apply  to  Rudolph  Schnau- 
belt,  a  man  six  feet  and  three  inches  tall;  that  the  whole 
story  of  the  group  in  the  alley  is  without  foundation, 
evidentl}'  an  afterthought  of  Gilmer,  and  contradicted  by 
the  incontestable  evidence  as  to  Spies'  and  Fischer's  move- 
ments, and  finally  that  Gilmer  was  successfully  impeached 
as  to  his  character  for  truth  and  veracity. 

Aside  from  this  we  have  upon  the  part  of  the  defend- 
ants the  following  testimony  to  show  that  Schnaubelt  had 
left  the  Haymarket  meeting  five  or  ten  minutes  prior  to 
the  explosion  of  the  bomb,  evidently  with  the  intention  of 
going  home. 

Edward  Lehnert  (A.,  233,  234;  M,  82  d  seg.)  says 
he  knew  Schnaubelt,  and  that  he  met  him  on  the  west 
side  of  Desplaines  street,  opposite  the  speakers'  wagon, 
about  the  time  that  the  dark  cloud  came  up,  and  before 
the  explosion  of  the  bomb;  that  August  Krueger  was 
present,  and  that  Krueger  spoke  to  Schnaubelt,  when 
the  two  went  away  toward  Randolph  street. 

It  was  further  offered  to  prove  by  this  witness  that  in 
the  conversation  which  he  then  and  there  had  with 
Schnaubelt,  Schnaubelt  stated  to  Lehnert  that  he  did  not 
understand  English,  had  expected  that  German  speakers 
would  address  the  meeting;  that  he  did  not  wish  to  staj^ 
any  longer  and  zt'cis  going  home,  and  asked  Lehnert  if 
he  would  go  along.  Lehnert  stated  that  he  did  not  go  in  the 
same  direction,  whereupon  Schnaubelt  went  away  with 
Krueger. 

We  respeclfuilv  submit  that  this  testimony  was  compe- 


95 

tent  as  part  of  the  res  gestae,  in  connection  with  evidence 
-as  to  the  movements  of  Rudolph  Schnaubelt,  who,  at  that 
time,  upon  the  testimony  of  the  state,  stood  charged 
with  throwing  the  bomb,  and  that  its  exclusion  by  the 
•court,  to  which  the  defendants  excepted  (A.,  234;  M,  89), 
was  error. 

Krueger  testifies  in  reference  to  this  same  occurrence 
{A.,  243;  M,  157),  that  he  met  Schnaubelt  at  the  Hay- 
market  meeting,  standing  with  Mr.  Lehnert  on  the  west  side 
■of  Desplaines  street,  a  little  north  of  Randolph,  about  ten 
o'clock;  that  Schnaubelt  stayed  there  about  five  minutes. 
Witness  -went  zuilh  Schnaubelt  down  Randolph  street 
up  to  Clinton,  a  distance  of  over  two  blocks,  where  he 
turned  north  on  Clinton  street,  while  Schnaubelt  proceeded 
■east  on  Randolph,  but  how  much  further  no  testimony 
■discloses.  We  were  denied  the  privilege  of  putting  in 
the  evidence  which  would  have  shown  affirmatively  to 
the  jury  the  reason  of  Schnaubelt's  leaving  the  meeting, 
and  that  he  was  leaving  it  finally,  and  with  no  thought 
■of  returning  to  it.  On  the  other  hand,  there  is  no 
•evidence  that  Schnaubelt  was  at  the  meeting  at  the 
time  of  the  explosion,  except  the  impeached  and  contra- 
•dictory  testimony  of  Gilmer,  who  attempts  to  identify  him 
from  a  photograph. 

The  evidence  is  conclusive  that  Schnaubelt  did  not 
throw  the  bomb.  It  is  perhaps  enough  to  say  in  regard 
to  the  testimony  of  Gilmer,  that  so  completely  and  over- 
whelmingly was  he  impeached,  contradicted  and  discred- 
ited, that  the  state  did  not  ask  a  single  instruction  to  the 
jury  based  upon  the  beltej  by  them  that  Rudolph  Schnau- 
hclt  threw  that  bomb  as  detailed  by  Gilmer.  The  testi- 
mony of  Gilmer  was  abandoned  by  the  representatives 
of  the  state  as  unworthy  of  credence  or  consideration,  in  the 
instructions  asked  b}"  them. 


96 

There  is  no  other  evidence  as  to  who  did  that  act. 
Our  claim,  therefore,  is  that  the  state  failed  to  establish 
that  the  bomb  was  thrown  by  a  member  of  the  conspiracy, 
or  by  the  froctirement  of  one  of  the  conspirators  in  pros- 
ecution of  the  common  object. 

The  result  of  the  foregoing  investigation  shows  the  tes- 
timony as  to  the  West  Lake  street  meeting  conspiracy  to 
have  been  incompetent  as  against  all  the  plaintiffs  in  error, 
even  Fischer  and  En  gel,  and  therefore  it  cannot  affect  any 
of  them. 

Taking  the  testimon}'  as  a  whole,  we  maintain  that 
there  is  an  entire  absence  of  credible  evidence  showing  that 
Adolph  Fischer  was  present  at,  or  ever  agreed  to  the 
throwing  of  a  bomb  at  the  Haymarket  meeting,  ever 
expected  any  such  act,  ever  did  anything  toward  provid- 
ing for  such  violence,  ever  entered  into  any  conspiracy 
having  that  act  as  an  object,  or  even  as  an  incident  of  its 
consummation.  The  testimony  in  regard  to  the  Sunday 
and  the  Monday  night  meetings,  as  given  by  the  state's 
own  witnesses,  absolutely  refutes  the  theory  that  the 
Haymarket  bomb  was  thrown  as  the  result  of  a  con- 
spiracy to  which  Fischer,  Engel  and  others  were  parties, 
and  for  which  they  can  be  held  upon  the  principle  of 
accessoryship  before  the  fact. 


George  Excel. 

The  case  attempted  by  the  state  to  be  made  against 
George  Engel  in  connection  with  the  Haymarket  meet- 
ing has  already  been  considered  in  a  large  measure  in  the 
preceding  pages.  One  additional  matter  requires  brief 
consideration. 

There  was  no  pretense  that  Engel  was    present   at  the 


97 

Haymarket  meeting  a:  the  time  that  the  bomb  was 
thrown,  nor  for  some  considerable  time  prior  thereto 
though  there  is  evidence  tending  to  show  that  he  was  at 
the  locaHty  of  the  meeting  early  in  the  evening.  Waller 
testifies  (A.,  6;  I,  73)  that  after  the  bomb  was  exploded, 
and  after  he  had  left  Zepf's  Hall,  he  proceeded  imme- 
diately home,  by  way  of  Engel's  house,  stopping  in  there; 
that  he  found  Engel  at  home  with  several  friends,  as  he 
expresses  it,  "  around  a  jovial  glass  of  beer,"  to  whom 
he  told  what  had  occurred  at  the  Haymarket. 

He  says  that  upon  this  announcement  being  made,  he 
told  the  party  there  gathered  that  he  thought  they  had 
better  go  home;  to  which  Engel  assented  in  effect,  saying 
yes,  they  should  all  go  home;  and  that  nothing  else 
occurred. 

Concerning  this  meeting  at  Engel's  house  after  the 
bomb-throwing,  one  other  witness  testifies,  namely  August 
Krueger  (A.,  243).  Krueger  says  that  he  was  at  the 
Haymarket  meeting,  and  remained  there  until  about 
10  o'clock;  that  he  then  left  the  meeting  and  went  to 
Engel's  house,  reaching  it  about  a  quarter  past  10  o'clock; 
that  Mr.  and  Mrs.  Engel  were  there,  and  the  witness 
drank  a  pint  of  beer  with  them ;  that  later,  Waller  came  in, 
said  that  he  came  from  the  Haymarket,  and  that  three 
hundred  men  had  been  shot  by  the  police,  and  that  "  we 
ought  to  go  down  there  and  do  something."  To  this 
Engel  responded  that  whoever  threw  that  bomb  did  a 
foolish  lhino\  it  was  nonsense,  and  he  did  not  sympathize 
with  such  a  butchery,  and  he  told  Waller  he  had  better 
go  home  as  quick  as  possible;  he  said  the  policemen  were 
just  as  good  people,  and  that  the  revolution  must  grow 
out  of  the  people,  then  the  police  and  militia  would  throw 
away  their  arms  and  go  with  the  people. 

From  the  concurring  testimony  of  these  two  witnesses. 


it  appears  l^eyond  question  that  at  the  time  the  bomb  was 
thrown  Enprel  was  quietly  at  home  with  a  little  party  of 
friends,  not  anticipating  any  violence  or  any  unlawful  con- 
duct; and  that  when  he  was  advised  of  what  had  occurred 
at  the  Haymarket,  he  immediately  deprecated  such  con- 
duct as  unwise,  denouncing  it  as  a  butchery  to  which  he 
■was  opposed.  Krueger  swears  that  to  Waller's  propo- 
sition that  something  should  be  done  by  the  parties  there 
gathered,  Mr,  Engel  responded  that  they  should  all  go 
home.  Waller  denies  that  he  made  the  suggestion  of 
which  Krueger  speaks,  but  admits  that  Engel  concurred 
in  the  .suggestion  that  they  should  go  to  their  homes 
quietly. 

If  the  Haymarket  meeting  had  been  planned  with  refer- 
rence  to  carrying  out  the  programme  of  action  discussed 
and  alleged  to  have  been  agreed  upon  at  the  Monday  night 
meeting,  then  the  natural  thing  for  Engel  and  his  associ- 
ates, when  the  news  was  brought  to  them  of  the  outbreak 
at  the  Haymarket,  would  have  been  to  have  gathered 
themselves  together  and  inaugurated  their  movement 
against  the  police.  The  fact  that  no  such  suggestion  came 
from  Engel;  and  that  if  such  a  suggestion  was  made 
tfrom  any  source,  it  found  no  entertainment  with  him,  is 
evidence  to  our  mind,  along  with  all  the  other  testimony 
in  the  case,  that  the  event  of  the  Haymarket  was  a  mat- 
ter of  absolute  surprise  to  Mr.  Engel. 

Nothing  in  his  conduct,  as  testified  to  by  these  witnesses, 
gives  color  for  a  moment  to  the  suggestion  that  he  con- 
sidered the  event  of  the  Haymarket  as  a  matter  growing 
out  of  an}^  purpose  or  enterprise  entertained  by  him,  or 
as  within  the  purview  of  any  understanding  or  agreement, 
to  which  he  was  a  party.  The  bomb  was  thrown  in  his 
absence,  by  some  party  acting  without  any  reference 
whatever  to  Mr.  EngeFs  attitude,  views  or  utterances.    In 


99 

other  words,  Mr.  Engel  never  aided,  advised,  assisted, 
encouraged  or  abetted  the  perpetration  of  the  crime  at  the 
Ha3market. 

Louis  Lingg. 

The  evidence  introduced  by  the  state  shows  that  Louis 
Lingg  did  not  attend  the ,  Haymarket  meeting,  nor  was 
within  a  distance  of  about  two  miles  thereof  during  the 
entire  evening.  The  incriminatory  evidence  against 
Lingg  is  chiefly  that  of  William  Seliger,  coupled  with 
the  fact  that  Lingg  manufactured  a  number  of  dynamite 
bombs.  But  there  is  no  evidence  in  the  record  to  show 
that  Lingg  knew  that  a  bomb  would  be  thrown  at  the 
Haymarket,  or  that  he  gave  a  bomb  of  his  manufacture 
to  any  person  for  the  purpose  of  having  it  there  thrown, 
or  had  any  knowledge  or  intimation  that  any  bomb  made 
by  him  might  or  would  be  thrown  by  any  person  what- 
ever on  that  occasion. 

Seliger  testifies  (A.,  44,  el  scq.)  substantially  as  fol- 
lows: "  On  Tuesday  I  rose  at  half-past  7,  and  after 
"  1  got  up  Lingg  came.  I  had  previously  told  him 
"  that  I  wanted  those  things  (bomb  and  bomb  material) 
"  removed  from  my  dwelling.  He  told  me  to  work  dili- 
"  gently  at  those  bombs,  and  they  would  be  taken  away 
"that  day;  I  took  some  coffee  and  after  a  time  I  worked 
"  at  some  shells — at  some  loaded  shells.  I  drilled  holes 
"  through  which  the  bolt  went,  a  shell  like  this  (indicat- 
"  ing  shell  introduced  in  evidence).  I  worked  on  the 
"  shells  half  an  hour.  Lingg  went  to  the  west  side  to  a 
"meeting;  got  back  probably  after  i  o'clock.  He  said 
"  I  didn't  do  much;  I  ought  to  have  worked  more  dili- 
"  gentl3^  I  said:  'I  hadn't  any  pleasure  at  the  work.' 
"  Lingg  said:  'Well  we  will  have  to  work  very  dili- 
"  gently  this  afternoon.'     During  the  afternoon   I  did  dif- 


\ferent  work,  at  the  shells.  In  the  morning  I  had  a  con- 
'■  versation  about  the  bolts.  He  told  me  he  had  not 
'  enough  of  them.  He  gave  me  one  and  told  me  to  go 
■  to  Clybourne  avenue  and  get  some  that  he  had  already 
'  spoken  to  the  man  about.  I  got  about  fifty.  I  worked 
'  at  the  bombs  during  the  whole  of  the  afternoon,  at  dif- 
'  ferent  times.  Huebner,  Munsenberg  and  Heuman 
were  helping.  I  worked  in  the  front  room,  also  in 
Lingg's  room  and  the  rear  room.  Lingg  first  worked 
at  gas  or  water  pipes,  such  as  these  (indicating). 
There  were  probably  thirty  or  forty  or  fifty  bombs 
made  that  afternoon.  The  round  bombs  had  been 
cast  once  before  by  Lingg,  in  the  rear  room  on  mj' 
stove,  probably  six  weeks  previous  to  the  q.th  of  May. 
The  first  bomb  I  ever  saw  was  in  Lingg's  room;  that 
was  still  before  that;  at  that  time  he  told  me  he 
was  going  to  make  bombs;  I  saw  dynamite  for  the  first 
time  in  Lingg's  room,  about  five  or  si.x  weeks  previous 
to  the  /|th  of  May;  Lingg  said  every  working  man 
should  get  some  dynamite,  that  there  should  be  consider- 
able agitation;  that  every  working  man  should  learn  to 
handle  these  things;  during  that  Tuesday  afternoon 
Lingg  said  those  bombs  were  going  to  be  good  fodder 
for  the  capitalists  and  the  police  when  they  came  to 
protect  the  capitalists;  nothing  was  said  about  when 
they  wanted  the  bombs  completed  or  ready;  I  only  told 
him  that  I  wanted  these  things  out  of  my  room;  there 
was  onl}'  a  remark  that  the}'  were  to  be  used  that  even- 
ing, but  nothing  positive  as  to  time.  I  left  the  house  at 
half-past  8  that  evening.  Huebner  was  at  the  house 
probably  from  4  to  6  o'clock;  I  did  not  see  what  he 
did;  he  worked  in  the  front  room  with  Lingg;  I  was 
in  Lingg's  room;  Munsenberg  was  there  as  long  as 
tluebner;  Thielen  was  there  half   an    hour — quite  tljat; 


"  I  did  not  see  what  he  was  doing.  The  Lehmanns  were 
"  at  the  house  for  a  little  while.  I  did  not  see  what  they 
"  were  doing;  they  were  in  the  front  room.  Heumann 
"  also  worked  at  the  bombs.  I  left  that  house  in  the 
"  evening  with  Lingg.  We  had  a  little  trunk  with 
"  bombs  in.  The  trunk  was  probably  two  feet  long,  one 
"  foot  high  and  one  foot  wide.  It  was  covered  with 
"  coarse  linen.  There  were  round  and  pipe  bombs  in  it. 
"  They  were  loaded  with  dynamite  and  caps  fi.xed  to 
■'  them.  I  don't  know  how  many  there  were.  The 
■'  trunk  might  have  weighed  from  thirty  to  fifty  pounds. 
'  We  pulled  a  stick,  which  Lingg  had  broken, 
•'  through     the     handle.  That      is      the     way      we 

'  carried  the  trunk,  which  was  taken  to  Neff's  Hall, 
'  58  Cly bourn  avenue.  On  the  way  to  Neff's  Hall, 
'  Munsenberg  met  us.  We  took  the  package  into  the 
'  building,  and  through  the  saloon  on  the  side  into  the 
'  hallway  that  led  to  the  rear.  After  the  bombs  were 
'  put  down  in  the  passage  way,  there  were  different 
'  ones  there,  three  or  four,  who  took  bombs  out  for  them- 
'  selves.  I  took  two  pipe  bombs  myself.  Carried  them 
'  in  my  pocket.  We  went  away  from  Neff's  Hall  and 
'  left  that  package  in  the  passage.  The  hall  back  of 
'  Neff's  Hall  is  known  under  the  name  of  the  "  Shanty  of 

•  the  Communists.'  Different  socialistic  and  anarchistic 
■organizations    met   there.     The    north    side   group   met 

•  there;  I  heard  that  the  Saxon  Bund  met  there.  I  don't 
■  know  any  others  that  met  there.    When  I  left  Neff's  Hall, 

•  Thielen  and  Gustav  Lehmann  were  with  me.  Later, 
two  large  men  of  the  Lehr  und  Wehr  Verein  came  to 
us;  I  believe  they  all  had  bombs.  We  went  on  to  Cly- 
hourn  avenue,  north,  toward  Lincoln  avenue,  to  the 
Larrabee  street  station,  where  we  halted.  Lingg  and 
m\-self  halted  there.     I  don't  know  what  had  become  of 


the  others.     Some  went  ahead  of  us.     Lingg  and  I  had 
'  a    conversation,  that  there  should  be  made  a  disturb- 

■  ance  everywhere  on  the  north  side,  and  keep  the  poHce 

•  from    going    over   to   the   west  side.     In    front   of    the 

■  Larrabee  street  station  Lingg  said  it  might  be  a  beau- 

•  tiful  thing   if  we   would  walk  over  and  throw  one  or 

•  two  bombs  into  the  station.  There  were  two  police- 
'  men  sitting  in  front  of  the  station,  and  Lingg  said 
'  if  the  others  came  out  these  two  could  not  do  much. 
'  We    would    shoot  these    two    down.       Then   we   went 

further  north  to  Lincoln  avenue  and  Larrabee  street, 
where  we  took  a  glass  of  beer.  Webster  avenue  sta- 
tion is  near  there.  After  we  left  the  saloon  we  went 
a  few  blocks  north,  then  turned  about  and  came  back  to 
North  avenue   and   Larrabee  street.     While  we  stood 

•  there  the  patrol  wagon  passed.  We  were  standing 
south  of  North  avenue  and  Larrabee  street.   Lingg  said 

■  that  he  was  going  to  throw  a  bomb;  that  was  the  best 

■  opportunity  to  throw    the  bomb,  and  I  said:     '  It  would 

■  not  have  any  purpose.'  Then  he  became  quite  wild, 
e.xcited;  said  I  should  give  him  a  light.  I  was  sm.oking 
a  cigar,  and  I  jumped  into  the  front  opening  before  a 
store  and  lighted  a  match,  as  if  I  intended  to  light 
a  cigar,  so  I  could  not  give  him  a  light.  When  I  had 
lighted   my  cigar,  the   patrol    wagon  was    just  passing. 

•  Lingg  said  he  was  going  to  go  after  the  wagon  to  see 

•  what  had  happened,  saying  that  something  had  certainly 

•  happened  on  the  west  side,  some  trouble;  the  patrol 
wagon  was  completely  manned,  going  south  on  Larra- 

•  bee  street;  we  were  four  or   five  houses  distant  from 

•  the  station;  then  I  went  into  a  boarding  house  between 

•  Mohawk  and  Larrabee  streets  and  lighted  a  cigar;  then 
we    went  towards   home.      First  Lingg  wanted  to  wait 

•  until  the  patrol  wagon  would  come  back,  but  I  iaipor- 


I03 

tuned  him  to  go  home  with  me.  We  got  home  proba- 
bly shortly  before  ii,  I  cannot  tell  exactly.  On  the- 
way  home  L-ingg  asked  me  whether  I  had  seen  a  no- 
tice that  a  meeting  of  the  armed  men  should  be  held  on 
the  west  side;  I  said  I  had  seen  nothing;  Lingg 
wanted  to  go  out;  I  took  the  Arbeiter  Zeitung,  tore  it 
in  two  parts,  he  took  one  and  I  one;  thereupon  he  said:. 
'  Here  it  is!'  and  called  my  attention  to  the  word  Kiihe. 
This  here  (paper  marked  People's  Exhibit  No.  4),. 
is  the  same  that  I  saw  in  my  house.  I  didn't  know 
the  meaning  of  the  word  Ruhe  until  the  time  I  saw 
it.  Lingg  said  there  was  to  have  been  a  meeting 
on  the  west  side  that  night,  and  he  was  going  to  go  at 
once  to  it — that  Ruhe  meant  that  everything  was  to  go- 
topsy-turvy;  that  there  was  to  be  trouble;  he  said  that 
a  meeting  had  been  held  at  which  it  was  determined  that 
the  word  Ruhe  should  go  into  the  paper,  when  all  the 
armed  men  should  appear  at  54  West  Lake  street;  that 
there  should  be  trouble.  After  that  talk  we  went 
away;  Lingg  wanted  to  go  to  the  west  side,  and  I 
talked  with  him  to  go  with  me  to  58  Clybourn  ave- 
nue. Lingg  and  I  went  there;  there  were  several  per- 
sons present  at  Neff's  Hall.  I  did  not  speak  with 
Lingg  at  Neff's  Hall;  a  certain  Hermann  said  to  him 
in  an  energetic  tone  of  voice:  'You  are  the  fault  of  all: 
of  it.'  I  did  not  hear  what  Lingg  said  to  that;  they 
spoke  in  a  subdued  tone;  somebody  said  a  bomb  had! 
fallen  which  had  killed  many  and  wounded  many;  I  did! 

•  not  hear  what  Lingg  said   to  that.     On  the  wav  home 

■  Lingg   said   that  he   was  even  now  scolded,  chided   for 

■  the    work  he    had  done;     we  got    home  shortly  after 

•  twelve.  We  laid  the  bombs  off  on  our  way  on  Sigel 
'  street  between  Sedgwick  and  Hurlbut,  under  an  ele- 
'  vated  sidewalk.     I   laid   two  pipe  bombs  there;  I   saw 


I04 

"  Lingg  put  some  bombs  there;  I  don't  know  what 
"  kind." 

On  cross-examination  this  witness  admitted  that  he  had 
been  under  arrest,  had  himself  been  indicted  for  murder 
in  this  same  matter,  that  he  had  been  furnished  money 
from  time  to  time  by  Capt.  Schaack,  and  that  he  had 
from  time  to  time,  at  the  instance  of  the  officers,  signed 
different  written  statements  as  to  the  occurrences  testified 
of,  statements  that  differed  from  one  another,  but  had 
finally  made  substantially  the  same  statement  as  he  had 
testified  to.  He  also  stated  that  Schaack  had  from  time 
to  time  paid  his  wife  money,  since  his  arrest,  and  stated 
(A.,  50)  that  the  agreement  on  Tuesday  afternoon 
was  that  they  were  to  go  that  evening  with  the  bombs 
they  were  manufacturing,  to  Clybourn  avenue;  that 
there. was  no  agreement  that  the  bombs  were  to  be  taken 
anywhere  else,  nor  what  was  to  be  done  with  them  after 
they  were  taken  there;  that  he  had  never  heard  of  any 
agreement  that  any  of  the  bombs  manufactured  on  May  4th 
were  to  be  taken  by  anybody  to  the  Hay  market;  that 
thev  zuei-e  not  on  that  occasion  making  bombs  to  take  to 
tlie  Haymarket  and  destroy  the  folice;  they  were  to  be 
taken  to  Clybourn  avenue  that  evening,  and  the  witness 
stated  that  he  could  not  say  that  a  single  bomb  was  made 
for  use  at  the  Haymarket  meeting. 

Mrs.  Seliger's  testimony  (A.,  51-53)  substantially  cor- 
roborates the  testimony  of  her  husband  as  to  the  fact  that 
Lingg  was  making  bombs,  and  as  to  the  fact  that  the 
bomb-making  was  carried  on  at  her  house  on  the  4th  day 
of  May,  1886. 

Concerning  these  matters,  Gustaf  Lehmann  testifies 
(A.,  73;  J,  198,  et  seq.)  that  he  went  to  Lingg's  room  on 
the  afternoon  of  May  4th,  reaching  there  about  5  o'clock: 
thai  he  there  saw   Lingg,  Seliger,  Huebner   and  a  black- 


smith  whose  name  he  could  not  remember;  he  remained 
there  about  ten  minutes;  they  did  some  work  in  the  bed- 
room which  the  witness  did  not  understand;  Lint^g  and 
Huebner  had  a  cloth  tied  around  their  faces;  later,  after 
going  away  for  a  time,  witness  returned  to  Lingg's  room 
about  7  o'clock,  and  remained  there  a  few  minutes;  that 
at  that  time  Huebner  was  cutting  a  coil  of  fuse  into  pieces; 
■during  the  afternoon,  Lingg  gave  to  the  witness  a  small 
band  satchel,  with  a  tin  box  in  it,  three  round  bombs, 
two  coils  of  fuse  and  some  caps.  Lingg  said  to  the 
witness  that  he  wanted  him  to  keep  these  things  so  that 
tno  one  could  find  them;  witness  took  them  home  with 
him  to  the  wood  shed,  and  that  night  carried  them 
away  to  the  prairie,  near  Cl3'bourn  avenue,  behind 
•Ogden's  Grove:  about  half-past  nine  he  went  to  Neff's 
Hall,  because  Lingg  had  told  him  on  Monday'  night  that, 
if  he  wanted  to  know  something,  he  should  come  to  58 
'Clybourn  avenue  on  Tuesdaj'  evening;  he  stayed  about 
ten  minutes  at  Nefl"'s  Hall;  he  did  not  see  anybody  there 
•whom  he  knew  except  the  barkeeper;  later  that  night, 
witness  met  Seliger  and  Lingg  on  the  sidewalk  on  Lar- 
rabee  street  near  Clybourn  avenue,  and  conversed  with 
them  for  a  few  minutes;  either  Lingg  or  Seliger  sug- 
gested that  they  should  not  all  keep  together,  and  there- 
upon they  separated. 

Moriz  Neff,  (A.,  82,  S3,)  testifies  that  he  is  the  pro- 
prietor of  the  saloon  at  58  Clybourn  avenue,  and  that  on 
the  night  when  the  bomb  was  thrown,  Lingg,  Seliger  and 
a  stranger  came  to  his  saloon,  bringing  a  satchel,  arriving 
about  a  quarter  past  8;  they  went  out  of  the  side  door  of 
the  saloon  with  the  satchel  or  bag;  Lingg  asked  him  if 
somebody  had  asked  for  him;  he  saw  Lingg  and  Seliger 
.again  that  night  about  11  o'clock;  during  the  whole  even- 
ing nobody  had    inquired  for  Lingg.      After    Lingg  went 


[o6 


away  upon  his  first  visit,  a  number  of  persons  came  into 
the  saloon,  among  them  the  Hermanns,  the  Lehmanns, 
the  Hagemanns  and  Hirschberger;  shortl}^  after  these 
Lingg  and  Seliger  came  in,  and  all  talked  together.  Wit- 
ness did  not  pay  much  attention  to  the  conversation,  but 
heard  some  one  of  the  party  speak  out  very  loud:  "That 
"  is  all  your  fault."  Some  of  the  parties  stated  that  a. 
bomb  had  been  thrown  among  the  police,  and  some  ofJ 
them  had  been  killed,  but  he  could  not  tell  whether  any 
of  the  parties  to  the  conversation  had  been  at  the  Hay- 
market  meeting,  whether  they  were  speaking  from  knowl— 
edge  or  from  hearsay. 

All  this  testimon}-  came  in  under  objection,  and  partic- 
ularly under  objection  in  behalf  of  the  defendants  otheir 
than  Lingg. 

One  of  the  witnesses  for  the  State,  namely  Capt- 
Schaack.  said  that  Lingg  had  admitted  to  him  that 
he  was  present  at  the  meeting  at  No.  54  West  Lake- 
street  on  the  night  of  May  3d.  But  that  he  was  present  at 
that  meeting,  was  conclusively  disproved  by  the  testimony 
of  Ernst  Niendorf  (A.,  276),  who  had  been  called  as  a 
witness  by  the  state,  and  that  of  Jacob  Sherman  (A.,  276)^ 
both  of  whom  swear  that  Lingg  was  present  at  a  meet- 
ing of  the  Carpenters'  Union  at  Zept's  Hall  on  the  night. 
of  May  3d,  from  8  until  after  1 1  o'clock. 

It  is  perfectly  evident  from  the  testimonj'  of  Seliger,. 
above  quoted,  that  Lingg  was  not  at  the  meeting  at  54. 
West  Lake  street,  and  that  he  had  no  clear  or  intelligent 
comprehension  of  the  plan  that  was  agreed  upon  at  that- 
meeting,  and  particularly  of  the  significance  of  the  word^ 
Rtihe  if  it  should  appear.  He  stated  on  the  night  of  May 
4tb,  so  Seliger  says,  that  the  word  Ruhe  was  a  signal  for 
the  armed  men  of  the  various  sections  to  meet  at  54  West 
Lake    street;    but,  according  to    Waller's    testimony,   no 


I07 

such  significance  whatever  attached  to  the  use  of  that 
word. 

The  direct  case  against  Louis  Lingg  consists  of  the 
following  facts:  (i)  That  he  did  manufacture  bombs. 
(2)  That  he  was  specially  active  in  preparing  bombs  on 
the  4th  day  of  May,  1886,  which  bombs  he  assisted  in 
carrying  to  Neff's  saloon,  58  Clybourn  avenue,  a  point 
more  than  two  miles  distant  from  the  Haymarket,  and  where 
he  arrived  with  Seliger  about  a  quarter-past  8  o'clock. 
And  (3)  that  he  proposed  to  Seliger,  if  we  accept  Sel'i- 
ger's  testimony,  an  attack  upon  the  police  out  on  Larrabee 
street,  also  two  miles  from  the  Haymarket. 

As  to  Seliger's  testimony,  it  must  be  borne  in  mind  that 
it  is  the  evidence  of  a  man,  who,  upon  his  own  showing, 
supposed  himself  to  be  swearing  for  his  life.  Such  tes- 
timony should  always  be  taken  with  great  caution,  and 
scrutinized  with  extreme  care — particularly  where,  as  in 
this  case,  the  party  admits  that  he  had  been  led  up 
to  the  point  of  the  testimony  given  through  repeated 
statements  extorted  by  the  police,  while  both  himself 
and  his  wife  were  under  arrest,  and  practically  as  the 
price  of  their  liberty.  Contradictions  in  the  testimony  of 
such  a  witness  are  matters  for  grave  consideration.  When, 
therefore,  Mr.  Seliger  says  that  there  was,  on  the  after- 
noon of  May  4th  a  remark  made  that  the  bombs  were  to 
be  used  that  night,;  but  practically  in  the  same  breath 
says:  "Nothing  was  said  about  when  they  wanted  the 
"  bombs  completed  or  ready,  and  nothing  positive  was 
"  mentioned  as  to  the  time  when  the  bombs  were  to  be 
'•used"  (A.,  46],  such  a  contradiction  is  not  without 
significance. 

Again,  it  is  rather  singular  that  the  only  person  who 
did  anything  which  looked  like  acting  upon  the  signal 
"Ruhe  "  should  have   been    Lingg  (  namely,  his  proposal 


io8 

to  attack  the  police  on  Larrabee  street),  who  at  the 
time  did  not  knoiv  that  thai  signal  zvas  published,  but 
learned  of  it  only  after  he  had  returned  home  late  at 
night.      (A.,  47;   I,  521.) 

In  the  face  of  the  proof  that  Lingg  did  not  attend 
the  Haymarket  meeting,  and  was  not  in  direct  com- 
munication with  anybody  shown  to  have  been  at  that 
meeting,  in  the  absence  of  all  evidence  that  any  one 
of  his  bombs  was  taken  to  that  meeting,  we  submit 
that  it  cannot  be  presumed,  cannot  legally  be  in- 
ferred, that  he  knew  or  understood  that  any  one  of  the 
bombs  manufactured  by  him  was  to  be  taken  to  the  Hay- 
market  meeting,  or  to  be  thrown  by  any  person  upon  that 
occasion.  The  most  we  think  that  can  fairly  be  con- 
cluded in  reference  to  Lingg  is,  that  he  was  completing 
the  manufacture  of  a  number  of  bombs  which  had  been 
begun  weeks  before  b}-  him,  and  when  a  Haymarket 
meeting  was  not  in  the  imagination  of  any  mortal,  in 
order  to  have  them  ready  generally  for  use  by  the  work- 
ingmen  in  the  event  of  a  general  outbreak  in  the  city,  or 
a  general  conflict  between  the  police  and  the  strikers,  and 
nOL  with  reference  to  their  particular  use  upon  the  occa- 
sion of  the  Haymarket  meeting. 

We  are  brought,  then,  to  the  simple  question  whether 
a  conviction  in  this  case  was  justified  as  against  Louis 
Lingg  because  he  was  a  bomb-maker. 

Upon  this  point  an  instruction  was  asked  to  be  given  to 
the  jury,  which  was  refused  by  the  court.  We  desire  to 
call  attention,  not  only  to  that  instruction,  which  we  be- 
lieve presented  a  correct  principle  of  law,  but  to  the  cir- 
cumstances attending  the  refusal  of  that  instruction  by 
Judge  Gary.  The  instruction  asked  was  as  follows 
(I  A.,  23;  0,32): 

"  It   is  not  enough  to   warrant  the    conviction   of    the 


I09 

"  defendant  Lingg  that  he  may  have  manufactured  the 
"  bomb,  the  explosion  of  which  killed  Mathias  J.  Degan. 
"  He  must  have  aided,  abetted  or  advised  the  exploding 
"  of  the  bomb,  or  of  the  doing  of  some  illegal  act,  or  the 
"  doing  of  a  legal  act  in  an  unlawful  manner,  in  the 
"  furtherance  of  which,  and  as  incident  thereto,  the  same 
"  was  exploded  and  said  Degan  killed.  If,  as  to  the 
"  defendant  Lingg,  the  jury  should  find  beyond  all  rea- 
"  sonable  doubt  that  he  did  in  fact  manufacture  said 
"  bomb,  but  are  not  satisfied  beyond  all  reasonable  doubt 
"  that  he  aided,  advised,  counseled  or  abetted  the  throw- 
"  ing  of  said  missile,  or  the  doing  of  any  unlawful  act 
«'  which  resulted  in  the  explosion  of  said  bomb,  your 
"  verdict  should  acquit  him,  as  far  as  the  establishment 
"  of  his  guilt  is  attempted  by  the  manufacture  of  said 
"  missile  or  bomb." 

The  circumstances  attending  this  instruction,  and  its 
handling  by  Judge  Garj',  present  some  peculiar  features. 
(i  A.,  23;  O,  33.)  The  instruction,  after  being  examined 
by  Judge  Gary,  was  marked  as  "  given."  The  judge  pro- 
ceeded to  read  it  to  the  jury  in  connection  with  the  other 
instructions  given  in  behalf  of  the  defendants.  The  record 
shows  that  he  read  it  half  way  through.  In  other  words, 
he  read  it  far  enough  to  show  to  the  jury  that  it  was  an 
instruction  applicable  to  the  case  of  Louis  Lingg,  and 
presenting  broadly  the  doctrine  that  a  man  could  not  be 
hung  for  a  murder  accomplished  by  a  weapon  manu- 
factured by  him  simply  because  he  manufactured  the 
weapon,  without  other  evidence  connecting  him  with  its 
use.  Judge  Gary  then  stopped,  and,  in  the  presence  of 
the  jui'}-,  said,  in  effect,  as  disclosed  by  the  record 
(i  A.,  23;  O,  33),  that  an  instruction  often  im- 
pressed one  differently  when  read  aloud,  and  there- 
upon, in   the    presence  of  the  jury,  marked    the    instruc- 


tion  "  refused,"  and  declined  to  read  the  balance  of  it. 
That  this  conduct  could  not  fail  to  prejudice  the  jury 
against  Louis  Lingg,  is  manifest.  The  action  of  the 
court  itself  was  erroneous;  its  effect  was  just  as  preju- 
dicial to  Louis  Lingg  as  if  he  had  read  the  instruction 
through,  and  then  orally  said:  "Gentlemen  of  the  jury, 
that  is  not  the  law."  Such  a  veibal  statement  would 
have  amounted  to  an  instruction  to  the  jury,  not  in  writ- 
ing, and,  therefore,  clearly  illegal. 

McEwen  v.  Morey,  60  111.,  32. 
Rev.  Stat.  111.,  Chap,  no,  Sec.  52. 

That  this  instruction  asked  in  behalf  of  Louis  Lingg 
should  have  been  given,  we  think  too  clear  to  admit  of 
serious  doubt.  It  even  so  commended  itself  to  the  judg- 
ment of  the  trial  court  as  to  secure  in  the  first  instance 
his  sanction.  But  not  only  did  the  court  thus  act  in 
reference  to  this  particular  instruction  naming  Louis 
Lingg,  but  even  a  general  instruction  asked  in  his  interest 
was  denied.  The  instruction  was  as  follows,  viz.  (i  A., 
i6;    0,15): 

"  The  court  further  instructs  the  jury  that  the  mere 
"  manufacture  and  disposition  of  deadly  weapons  does  not 
"  of  itself  make  the  party  so  manufacturing  or  disposing 
"  thereof  responsible  for  murder  committed  therewith  by 
"  third  parties.  Before  such  manufacturer  or  distributor 
"  can  be  held  liable  for  a  murder  committed  by  a  third 
"  party,  it  must  be  made  to  appear  by  credible  evidence, 
"  be)'ond  all  reasonable  doubt,  that  such  manufacturer  or 
"  distributor  countenanced,  advised,  aided,  encouraged 
"  or  abetted  the  particular  act  of  such  third  party,  which 
"  resulted  in  the  homicide,  and  was  thus  himself  in  con- 
"  templation  of  law  accessory  to  the  particular  act 
"  charged  as  a  crime." 

Does   not  this    instruction   announce    a  correct  rule  of 


law?  No  equivalent  for  it  is  to  be  found  in  the  instruc- 
tions given.  And  certainly  tfie  situation  of  the  case  upon 
the  evidence  justified  the  asking  of  this  instruction.  If 
■so,  was  not  the  refusal  to  give  it  clear  error.'' 

Whatever  may  be  our  criticism  upon  the  matter  of 
smanufacturing  dynamite  bombs  for  any  purpose,  there 
lis  no  law  within  this  State  which  makes  the  mere 
«ianufacture  of  such  missiles  a  crime  punishable  with 
•death  or  otherwise.  Louis  Lingg  could  not  have  been 
■convicted  of  murder  because  of  all  this  matter  detailed 
by  Seliger  and  his  wife  and  Lehmann,  even  if  it  were 
<;lear  that  the  bomb  thrown  at  the  Haymarket  had  come 
from  his  hands,  if  it  had  been  thrown  by  a  third  party  acting 
xipon  his  own  responsibility  and  without  Lingg's  knowl- 
-edge,  consent,  aid,  assistance,  advice  or  encouragement. 
For  example,  the  manufacturers  of  revolvers,  bowie  knives, 
■dirks,  poisoned  daggers,  Gatling  guns,  air  guns,  have  never 
been  held  responsible  for  the  consequences  of  the  use  of 
these  weapons  by  a  third  party  acting  sua  sponle.  These 
weapons  are  harmless  in  themselves,  and  cannot  be  in- 
•volved  in  the  commission  of  crime  until  some  free  moral 
agent  intelligently  applies  them  to  some  purpose  of  de- 
struction. Nor  is  this  rule  atiected  by  the  fact,  if  con- 
ceded, that  the  manufacturer  must  have  known  that  the 
natural  use  to  which  the  implement  manufactured  would 
l>e  put  would  be  the  taking  of  human  life.  We  may 
•deprecate  such  industry,  but  we  cannot  say  that  the 
mere  pursuit  of  the  industry  makes  the  man  engaged 
in  it  responsible  for  every  use  of  the  implement  pro- 
duced. By  wa}'  of  illustration,  we  may  suppose  that 
■some  third  party,  an  enemy  of  Lingg's,  had  obtained  one 
•of  the  bombs  of  his  manufacture  and  use  for  the  purpose 
of  deliberate  murder,  with  the  design  of  involving  Lingg 
himself    in    ruin,    and    with    it     committed     a     crime     to 


which  Lingg  was  a  stranger;  such  result  would  not 
follow.  In  order  to  justify  a  legal  conviction  of  murderj 
there  must  be  satisfactory  and  conclusive  proof  of  the 
commission  by  the  'party  accused,  in  his  own  person  or 
through  another  acting  under  his  aid  and  advice,  of  the 
crime  alleged.  It  will  not  do  to  allow  our  horror  over  the 
use  of  this  terrible  explosive  to  carry  us  away  from  the 
moorings  of  the  law.  It  will  not  do  for  us  to  allow  the- 
realm  of  jurisprudence  to  be  invaded  by  the  mere  dic- 
tates of  supposed  policy.  We  must  stand  by  fixed  prin- 
ciples of  general  application.  Only  thus  can  the  law  be 
administered  as  a  science,  and  be  made  the  protection  of 
the  innocent  and  the  terror  only  of  the  guilt}-. 

We  submit  and  insist  that  this  record  is  barren  of  evi- 
dence justifying  the  conclusion  by  tJie  jury  that  Louis 
Lingg  was  a  party  to  a  conspiracy  to  throw  a  bomb  on 
the  night  of  May  4,  1886,  or  to  a  coinmon  object  in  the 
attempt  to  execute  which  that  bomb  was  thrown.  The 
evidence  is  conclusive  that  Lingg  did  not  throw  the 
bomb,  did  not  stand  b}-  and  assist  the  perpetration  of 
the  crime.  It  follows  as  an  irresistable  conclusion  from^ 
Seliger's  testimony,  that  whatever  Lingg  did,  whatever 
he  may  have  attempted  or  proposed  on  the  north  side,  he 
had  no  knowledge  that  a  bomb  would  be  thrown  at  the 
Haymarket  meeting.  The  evidence  fails  to  show,  that 
without  being  present,  he  had  advised,  encouraged,  aided 
or  abetted  the  perpetration  of  the  crime  charged  in  the 
indictment. 

The   Haymarket  Meeting. 

It  is  perhaps  fitting  that  at  this  juncture  a  little  space 
should  be  devoted  to  the  consideration  of  the  Haymarket 
meeting  itself,  its  special  features,  and  the  facts  leading  up 


"3 

to,  and  resulting  in,  the  tragedy  of  the   night  of   Maj-  4, 
1886. 

The  Haymarket,  so-called,  is  a  widening  of  Randolph 
street  between  Desplaines  and  Halsted  streets,  extending 
a  distance  of  two  blocks.  (People's  Exhibit  i.  Vol,  of 
Ex.)  The  territory  was  sufficiently  large  for  the  hold- 
ing of  an  immense  meeting,  and  the  evidence  shows  that 
when  it  was  called  a  very  large  attendance  was  expected. 
This  expectation  was  not  realized.  Only  here  and  there 
small  groups  of  men  gathered  on  the  Haymarket  square, 
and  the  speakers  were  late  in  arriving.  At  the  hour 
named,  7:30  p.  m.,  no  one  was  upon  the  ground  to  call 
the  people  together  or  to  open  the  meeting.  There  is  no 
contradiction  of  the  testimony  as  to  these  points.  It  is 
proved  alike  by  the  witnesses  for  the  State  and  for  the 
defense,  that  no  move  was  made  toward  the  calling  to 
order  of  the  meeting  itself  until  August  Spies,  looking 
around  for  a  suitable  rostrum  from  which  to  address  the 
crowd,  selected  the  truck  wagon  which  he  found  standing 
close  to  the  edge  of  the  sidewalk  in  Desplaines  street, 
and  directly  in  front  of  the  steps  leading  up  to  the  door 
entering  into  the  Crane  Bros,  manufacturing  establishment. 
The  wagon  stood  with  the  rear  to  the  south,  the  tongue 
to  the  north;  and  the  end  of  the  wagon  was  some  six  or 
eight  feet,  or  more,  north  of  the  north  line  of  the  Crane 
Bros.'  alley.  This  is  a  short  alley,  as  shown  by  the  plat, 
which  enters  the  block  from  Desplaines  street  toward 
the  east  upon  the  south  line  of  Crane  Bros.'  building,  and 
extends  about  half  way  through  the  block,  then  makes 
a  junction  with  another  short  alley  extending  out  from 
the  point  of  junction  southward  to  Randolph  street.  This 
alley  is  a  perfect  cul-de-sac  as  it  there  existed,  and  all 
egress  from  it  could  be  stopped  by  a  handful  of  men  at 
the  Randolph  street  exit. 


Having  selected  this  wagon  Mr.  Spies  mounted  it  at 
about  half-past  eight  o'clock  and  inquired  for  Parsons. 
Parsons  not  responding,  Spies  dismounted  from  the 
Avagon  and  went  in  search  of  him,  being  absent,  as 
■estimated  by  the  difft;rent  witnesses,  from  five  to  ten 
■minutes,  and  returning  again,  mounted  the  wagon  and 
■commenced  to  speak.  He  spoke  about  twenty  minutes. 
As  soon  as  Parsons  and  Fielden  arrived  Spies  brought 
his  remarks  to  a  close  and  introduced  Parsons.  Parsons 
■did  not  commence  to  speak  until  about  nine  o'clock;  he 
spoke  from  three-quarters  of  an  hour  to  an  hour.  At  the 
end  of  Parsons'  speech  Fielden  was  introduced.  He 
spoke  about  twenty  minutes;  and  about  twenty  minutes 
past  lO  o'clock  at  night,  his  speech  was  interrupted  b}'  the 
arrival  of  the  police,  the  order  to  disperse,  and  the  sub- 
sequent explosion  of  the  bomb. 

From  its  beginning  to  its  close,  the  meeting  was  as 
■orderly  as  any  ordinary  outdoor  meeting.  Mr.  English, 
the  Tribune  reporter,  says  (A.,  133;  K,  284):  " //  zi'as 
"  a  feaceable  and  quiet  meeting-  for  an  outdoor  meeting. 
'"  I  didn't  see  any  turbulence.     I  was  there  all  the  time." 

Mayor  Harrison  tells  us  (A.,  174;  L,  27  et  seq.),  that 
having  had  a  conversation  with  Inspector  John  Bonfield, 
and  arranged  for  the  presence  of  the  police  at  the  Des- 
plaines  street  station,  to  be  held  in  readiness  against  possi- 
ble violence  by  the  Haymarket  meeting,  he  concluded  to 
attend  the  same  in  person,  so  as  to  personally  order  its 
dispersion  if,  in  his  judgment,  it  assumed  a  dangerous  ten- 
dency. It  was  his  own  determination  to  do  this,  against 
the  will  of  the  police.  He  attended  the  meeting  from  its 
beginning  until  near  the  close  of  Parson's  address.  Here 
is  his  testimon}'  (A.,  175;  L,  36  ct  seq.) : 

"  I  did,  in  fact,  take  no  action  at  the  meeting  about  dis- 
"  persing   it.     There    were    occasional    replies    from    the 


"5 

■  audience,  as  '  Shoot  him,'  '  Hang  him,'  or  the  like,  but  I 

•  don't  think,  from   the  directions  in  which  they  came, 

■  here  and  there  and  around,  that  there  were  more  than 

■  two  or  three  hundred  actual  sympathizers  with  the 
'  speakers.  Several  times  cries  of  '  Hang  him  '  would 
'  come  from  a  boy  in  the  outskirts,  and  the  crowd  would 

■  laugh.  I  felt  that  the  majority  of  the  crowd  were  idle 
'  spectators,  and  the  replies  nearly  as  much  what   might 

•  be  called  '  guying  '  as  absolute  applause.     Some  of  the 

■  replies  were  evidently  bitter;  they  came  from  immedi- 
ately around  the  stand.     The  audience  numbered  from 

■  eight  hundred  to  one  thousand.  The  people  in  attend- 
ance, so  far  as  I  could  see  during  the  half  hour  before 
the  speaking  commenced,  were  apparently  laborers  or 
mechanics,  and  the  majority  of  them  not  English-speak- 
ing people,  mostly  Germans.  There  was  no  sug- 
gestion made  by  either  of  the  speakers  look- 
ing toward  calling  for  the  immediate  use  of 
force  or  violence  towards  any  person  that  night; 
if  there  had  been,  I  should  have  dispersed  them  at  once. 
After  I  came  back   from   the  station    Parsons  was  still 

■  speaking,  but  evidently  approaching  a  close.  It  was 
becoming  cloudy,  and  looked  like  threatening  rain,  and 
I  thought  the  thing  was  about  over.  There  was  not 
onc-fotirth  of  the  crowd  that  had  been  there  during  the 
evening,  listening  to  the  speakers  at  that  time.  In  the 
crowd  I  heard  a  great  many  Germans  use  expressions 
of  their  being  dissatisfied  with  bringing  them  there  for 
this  speaking.  When  I  went  to  the  station,  during  Par- 
sons' speech,  I  stated  to  Capt.  Bonfield  that  I  thought 
the  speeches  were  about  ov^r;  that  nothing  had  occurred 
yet,  or  looked  likely  to  occur,  to  require  interference,  and 
that  he  had  better  issue  orders  to  his  reserves  at  the 
other  stations  to  go  home.     Bonfield  replied  that  he  had 


ii6 

"  reached  the  same  conclusion  from  reports  brought  to  him, 
"  but  he  thought  it  would  be  best  to  retain  the  men  in  the 
"  station  until  the  meeting  broke  up,  and  then  referred  to 
"  a  rumor  that  he  had  heard  that  night,  which  he  thought 
"  would  make  it  necessary  for  him  to  keep  his  men  there, 
"  which  I  concurred  in.  During  my  attendance  of  the 
"  meeting  I  saw  no  weapons  at  all  upon  any  person." 

Upon  cross-examination  he  says  (A.,  176)  the  rumor 
referred  to  was  related  to  him  by  Capt.  Bontield 
immediately  after  his  reaching  the  station.  Bonfield 
told  him  that  he  had  just  received  information  that 
the  Haymarket  meeting,  or  a  part  of  it,  would  go 
over  to  the  Milwaukee  and  St.  Paul  freight  houses,  then 
filled  with  scabs,  and  blow  it  up.  There  was  also  an  ap- 
prehension or  fear  on  Mayor  Harrison's  part  that  this 
meeting  might  be  held  merely  to  attract  the  [attention  of 
the  police  to  the  Haymarket,  while  the  real  attack,  if  any, 
should  be  made  that  night  on  McCormick's.  Those 
were  the  contingencies  in  regard  to  which  he  was  listen- 
ing to  those  speeches.  In  listening  to  the  speeches,  he 
concluded  it  was  not  an  organization  to  destroy  property 
that  night,  and  went  home. 

This  is  the  testimony  of  the  chief  executive  officer  of 
the  city,  who  was  there  upon  the  ground,  charged  with 
the  duty  of  preserving  the  peace  and  preventing  violence. 
We  think  it  useless  to  quote  from  the  testimon}-  of  a 
score  of  other  witnesses,  in  order  to  show  that  the  meet- 
ing was  peaceable  and  orderly  during  the  time  that  Ma^-or 
Harrison  was  present.  We  shall  only  attempt  to  answer 
the  question:  Did  the  meeting  change  its  character  after 
Mr.  Harrison  left  it? 

If  the  meeting  commenced  to  disintegrate  while  Par- 
sons was  speaking,  it  had  practically  dissolved  before  Mr. 
Fielden    was    interrupted    by  the    arrival    of  the    police. 


117 

Upon  the  proposal  by  Parsons  of  an  adjournment  of  tlie 
meeting  to  Zepf's  Hall,  the  meeting  dwindled  to  about 
one-third  or  one-fourth  of  its  original  proportions.  Major 
Harrison's  statement  that  there  were  at  no  time  more 
than  eight  hundred  to  one  thousand  men  in  attendance,  is 
supported  by  substantially  all  the  witnesses  who  testified 
in  regard  to  the  size  of  the  meeting. 

It  is  also  admitted  by  substantially  all  the  witnesses  that 
not  more  than  three  to  five  hundred  were  left  upon  the 
ground,  when  the  meeting  came  to  a  close,  some  standing 
immediately  around  the  wagon,  others  upon  the  opposite 
sidewalks  of  the  street.  Fielden  continued  his  address, 
approaching  a  close,  and  had  in  fact  said  the  words,  "  In 
"  conclusion,"  as  he  neared  the  end  of  his  speech.  Sud- 
denly he  was  stopped  by  the  arrival  of  a  police  force  of 
about  one  hundred  and  eighty  men,  the  head  of  the  col- 
umn being  halted  by  the  officer  in  command  about  the 
north  Hne  of  the  alley  projected,  and  within  six  or  eight 
feet  of  the  wagon  itself.  There  is  no  pretense  that  there 
was  any  difficulty  experienced  by  the  head  of  the  column 
in  reaching  this  position.  There  was  no  such  crowd  as  to 
interfere  with  their  free  and  rapid  movement. 

As  to  the  character  of  this  movement  of  the  police, 
the  testimony  of  the  officers  themselves  shows  that 
the  order  to  fall  in  was  given  urgently;  there  was 
no  halting  of  the  head  of  the  column  until  the  com- 
plete column  was  formed;  the  head  of  the  column 
moved  without  halting,  at  a  rapid  march,  so  that  those 
who  came  later  out  of  the  station  'and  formed  the 
second  and  third  companies  of  the  column  were  compelled 
to  proceed  almost,  if  not  quite,  at  a  double  quick,  in  order 
to  get  their  position  in  the  line,  and  that  they  did  not  in 
fact  gain  that  position  until  the  head  of  the  column  had 
reached  the  position  of  the  halt.     This   appears  from  the 


testimony  of  Lieut.  Stanton  (A.,  i6;  I,  216);  Ferguson 
(A.,  183;  L,  133),  and  Gleason  (A.,  203;  L,  362,  363  )> 
No  explanation  is  given  by  any  of  the  officers  in  charge 
of  the  force  that  night  of  this  haste.  Here  was  in  process 
of  dissolution,  a  meeting  from  which  no  violence  or  dan- 
ger was  apprehended  a  few  minutes  before.  Capt.  Bon- 
field  says  that  he  was  in  receipt  of  constant  information 
from  this  meeting.  We  are,  therefore,  warranted  in  say- 
ing that  when  he  ordered  his  men  to  fall  in,  he  must  have 
known  that  the  meeting  was  about  to  break  up  and  the 
people  to  go  home;  that  he  knew  up  to  the  time  of  the 
latest  advices  received  b}^  him  no  proposal  to  do  any 
unlawful  act  had  been  advanced,  and  no  turbulent  or  law- 
less character  had  been  developed  in  the  meeting  itself. 
Substantiall}'  all  of  the  witnesses  concur  in  saying  that 
the  meeting  was  more  enthusiastic  and  responsive  while 
Parsons  spoke  than  when  Fielden  spoke,  a  position 
vouched  for  by  the  fact  that  the  audience  was  rapidly 
scattering  during  the  progress  of  Mr.  Fielden's  speech^ 
and  explained  b)-  the  fact  that  those  present  were  wearied 
of  their  long  standing  in  the  cold  street. 

This  meeting,  being  reached  by  the  police,  Capt.  Ward 
gave  at  once  the  command:  "  In  the  name  of  the  people 
"  of  the  State  of  Illinois,  I  command  this  meeting  immedi- 
"  ately  and  peaceably  to  disperse,"  followed  in  the  ver}- 
same  breath  by  the  words:  "And  I  call  upon  you  and 
"  you  (turning  to  bystanders)  to  assist." 

To  assist  in  what?  In  dispersing  a  meeting  that  was 
refusing  to  peaceably  disperse  upon  lawful  command?  In 
dispersing  a  riotous  or  unlawful  assemblage  and  arresting 
and  securing  the  rioters?  In  suppressing  a  disorderly  and 
tumultuous. gathering  that  was  threatening  the  peace  and 
dignity  of  the  city  and  of  the  State? 

The  law   of  the   State   of  Illinois  in    reference  to    the 


119 

suppression  of  unlawful  assemblages,  as  found  in  sections 
253  and  254  of  Div.  i,  Chap.  38,  R.  S.  111.  Crim.  Code, 
clearly  contemplates  that  when  a  meeting  admittedly  of 
a  riotous  or  tumultuous  character,  is  ordered  to  disperse 
by  proper  authority,  a  reasonable  opportunity  to  comply 
with  such  order  shall  be  afforded  before  any  demonstra- 
tion of  violence  or  force  shall  be  made,  so  likely  in  itself 
to  precipitate  the  very  evil  to  be  guarded  against,  by 
unnecessarily  irritating  the  populace.  Nothing  of  this 
kind  occurred  at  the  Haymarket  meeting.  When  the 
order  to  disperse  was  given,  no  reasonable  and  proper 
opportunity  for  compliance  with  that  order  was  afforded 
in  the  first  instance,  but  there  was  an  immediate  call  upon 
the  bystanders  to  assist  in  the  forcible  dispersion  of  a 
meeting  that  ^vas  confessedly  quiet,  orderly,  peaceable, 
small  in  numbers,  and  upon  the  ver}'  eve  of  voluntary 
dispersion. 

Replying  simply  that  the  meeting  was  peaceable,  Mr. 
Fielden  at  once  dismounted  from  the  truck,  and  the 
others  that  were  on  it  in  like  manner  proceeded  to  alight, 
and  were  in  the  act  of  separating  promptly  and  without 
any  delay  whatever,  as  is  conceded  in  all  the  testimony,, 
when  the  bomb  was  thrown. 

Immediately  following  the  explosion  of  the  bomb,  there 
was  a  great  amount  of  pistol  shooting.  It  is  claimed  by 
the  police  that  somewhere  from  fifty  to  seventy-five,  or 
possibly  one  hundred  shots  were  fired  into  them  from 
both  sides  of  the  street,  before  any  shot  was  fired  by  the 
police.  We  believe  we  are  justified  in  saying  that  the 
claim  that  the  explosion  of  the  bomb  was  followed  by  a 
volley  from  the  crowd,  as  though  the  one  had  been  the 
signal  for  the  other,  is  a  claim  that  grevv  up  after  the 
Haymarket  meeting,  finding  support  from  the  assertions 
of  men   who,   like    Mr.  Hull,  could    remember   what   oc->- 


curred  on  that  night  several  months  afterwards  much 
better  than  they  could  the  next  morning.  Mr.  Hull  was 
a  reporter  for  the  Daily  News,  attended  the  meeting  that 
night,  standing  at  the  head  of  the  stairs  on  the  north- 
west corner  of  Desplaines  and  Randolph.  On  cross- 
examination  he  says   (A.,  117,  118;  K,  129,  135  et  seq.): 

"  I  wrote  the  account  of  the  Haymarket  meeting,  de- 
"  scribing  the  throwing  of  the  bomb  and  what  followed 
"  immediately,  which  account  was  published  in  the  Daily 
"  News  on  the  following  morning.  It  was  correct,  ac- 
"  cording  to  my  impression  at  that  time.  My  impression 
"  has  decidedly  improved  since.  I  was  as  well  advised  at 
"  the  time  as  I  am  now,  but  my  recollection  was  not 
"  clear  at  the  time.  /  have  said  noivhere  in  this  report 
"  (report  in  the  Daily  News  of  May  5,  1886)  that  the 
"  crowd  fired  upon  the  police.  I  did  say  that  the  police 
"  required  no  orders  before  tiring  upon  the  crowd.  I 
"  wrote  this  about  an  hour  after  the  occurrence.  After 
"  describing  the  explosion  of  the  bomb  I  used  this  lan- 
"guage  in  my  report:  '  For  an  instant  after  the  explo- 
"  sion,  the  crowd  seemed  paralyzed,  but  with  the  revolver 
"  shots  cracking  like  a  tattoo  on  a  mighty  drum,  and  the 
"  bullets  flying  in  the  air,  the  mob  plunged  away  in  the 
"  darkness  with  a  yell  of  rage  and  fear.' " 

That  the  crowd  opened  fire  upon  the  police  is  explicit!}' 
denied  by  the  following  witnesses:  Simondson  (A.,  179; 
L,  73);  Zeller  (A.,  185;  L,  157);  Richter  (A.,  187;  L, 
iSi);  Liebel  (A.,  189;  L,  202,203);  Taylor  (A.,  192; 
L,  233);  Stenner  (A.,  196;  L,  283);  Gutscher  (A.,  197; 
L,  301,  302);  Raab  (A.,  198;  L,  315,  316);  Urban  (A., 
202;  L,  349);  Hiersemenzel  (A.,  207;  L,  387);  Messer 
(A.,  208;  L,  401) ;  Lindinger  (A.,  216;  L,  475) ;  Koehler 
(A.,  219;  L,  514,  515);  Heidekrueger  (A.,  222;  L,  545, 
546);  Schmidt    (A.,  223;  L,  552);  Schwindt   (A.,  223; 


I>,  557);  Hollovvay  (A.,  230;  M,  64);  Lehnert  (A.,  234; 
jVI,  91);  Snyder  (A.,  237;  M,  112);  Waldo  (A.,  245; 
M,  170);  Ingram  (A.,  287,  28S;  M,  451);  Schultz  (A., 
J78;  M,  3S2),  from  whose  testimony  it  also  appears  that 
the  police  pursued  fleeing,  inoffensive,  defenseless  citizens, 
•clubbing  and  shooting  them. 

In  this  connection  we  beg  to  cite  the  following  testi- 
mony of  Dr.  Taylor:  "When  I  revisited  the  ground  the 
•"  next  morning  I  noticed  bullet-marks  on  the  wall  of 
-"  Crane's  building,  which  forms  the  north  side  of  Crane's 
■"  alley.  I  could  not  find  one  hiillet-niark  on  the  wall  at 
-''  the  south  side  of  the  alley.  I  examined  a  telegraph  pole 
■"  on  the  west  side  of  Desplaines  street,  north  of  Crane's 
■"  alley.  I  noticed  that  all  the  ferforations  were  on  the 
•"  south  side  of  that  telegraph  pole.  I  did  not  find  one 
■"  pistol  shot  or  fresh  mark,  upon  the  north  side.  The 
■"  pole  is  not  there  noiv;  about  a  week  and  a  half  ago  I 
-"  observed  for  the  first  time  that  it  was  not  there  any 
■^'  longer."  This  testimony  was  not  attempted  to  be  con- 
Ttradicted.  Comment  upon  that  seems  to  us  unnecessary. 
Even  of  the  witnesses  for  the  state,  the  following 
honestly  admit  that  they  cannot  say  that  the  crowd  first 
iiired  upon  the  police: 

Lieut.  Stanton  says  (A.,  16;  I,  222)  he  fired  inimc- 
'diately  upon  the  explosion  of  the  bomb,  and  he  could  not 
swear  whether  the  police  or  the  crowd  fired  first. 

Reporter  Freeman  says  (A.,  106;  K,  41,  42)  he  don't 
.know  where  the  firing  began  first,  and  that  he  retreated 
into  the  alley  because  he  satv  no  firing  from  tl  ere,  while 
the  police  claimed  that  the  crowd  fired  from  the  side- 
walk and  the  alley. 

Officer  Cosgrove  (A.,  121;  K,  170)  says  he  can't  tell, 
'ivhether  the  police  fired  first  or  the  other  side. 

Reporter   Heinemann  (A.,  126;  K,  253)  says  he  could 


not  say,  whether  the  first  shots  came  from  the  police  or 
the  crowd. 

The  police,  after  the  explosion  of  the  bomb,  nred 
indiscriminately,  and  in  wild  confusion,  shooting  each 
other  as  well  as  pursuing  the  fleeing  people  in  every 
direction  and  firing  upon  them. 

Compare  the  testimony  of  Simondson:  "The  police 
"  were  not  only  shooting  upon  the  crowd,  but  I  noticed 
"  several  of  them  shoot  just  as  the)'  happened  to  throw 
"their  arms"  (A.,  179;  L,  74),  with  that  of  Dr.  Fleming,, 
that  the  bullet  which  he  extracted  from  officer  Krueger"^ 
knee  was  a  police  regulation  bullet  (A.,  246,  247;  M,. 
179  et  seq.) 

This  is,  perhaps,  not  the  proper  place  for  an  arraign- 
ment of  the  police  for  their  action  in  menacingly  march- 
ing in  such  numbers  and  in  the  manner  specified  upon  a 
peaceable  meeting  of  citizens  upon  the  eve  of  its  adjourn- 
ment. Neither  shall  we  enter  into  a  consideration  of  the 
unconstitutionality-  of  this  dispersion.  We  shall  only  aski 
What  excuse  is  there  for  this  movement?  What  occasior* 
was  there  for  the  police  to  thus  interfere  with  this  meeting? 

While  the  foregoing  evidence  shows  the  peaceable  and 
orderly'  character  of  the  meeting  until  its  dispersion,  it  also- 
appears  that  none  of  the  parties  connected  with  the  calling 
of  that  meeting  had  any  criminal  design  in  view  in  the 
calling  thereof.  It  was  believed  by  the  parties  who  called 
the  meeting  that  a  great  wrong  had  been  done  in  the  city 
of  Chicago  shortly  prior  thereto,  and  the  call  itself  referred 
to  this  alleged  grievance.  Perhaps  they  were  mistaken  as 
to  their  view  of  the  occurrence  to  which  they  referred,, 
but  certainly  they  had  a  right,  and  there  was  no  crime  in- 
volved in  the  exercise  of  that  right,  to  call  a  meeting  of 
citizens  for  the  purpose  of  protesting  against  those  sup- 
posed grievances;  and  this  was  all  that  was  done  in  con- 


123 

nection  with  the  calling  of  the  Haymarket  meeting,  and 
all  that  was  designed.  The  impression  that  got  abroad, 
that  it  was  a  part  of  the  design  of  the  meeting  to  make 
a  disturbance,  was  expressly  disclaimed  by  Mr.  Spies 
when  he  took  the  speakers'  stand,  and  the  entire  tend- 
ency of  the  addresses  was  the  very  reverse  of  inciting  to 
any  present  riot  or  lawlessness. 

The  evidence  utterly  fails  to  show  that  any  of  these 
plaintiff's  in  error  knew  that  a  bomb  was  to  be  thrown  by 
any  one.  It  presents  an  instance  of  a  meeting  where 
some  one,  unknown  to  the  public  and  to  the  plaintiffs  in 
error,  threw  the  bomb  and  did  the  kilHng;  and  the  ques- 
tion is,  whether  the  plaintiffs  in  error  are  to  be  convicted 
as  accessories  to  a  crime  they  did  not  know  was  to  be  com- 
mitted, did  not  advise,  aid  or  abet,  and  in  which  the  really 
guilty  party  is  as  unknown  to  them  as  to  the  public. 


OUR   POSITIONS  UPON  THIS  STATE  OF  THE  CASE. 

It  is  proper  that  at  this  point  we  should  present  to  the 
court  our  views,  and  the  authorities  sustaining  them,, 
touching  the  case  attempted  to  be  made  by  the  state  upon 
the  evidence  thus  far  considered,  and  which  in  our  view 
certainly  includes  all  the  testimony  in  this  record  which 
was  properly  before  the  jury  for  their  consideration  in  the 
determination  of  the  issues  presented  to  them. 

I.     Mere  participation  in  an  unlawful  assemblv 

DOES  NOT    make    RESPONSIBLE    FOR    THE  INDEPENDENT 
CRIME  OF  A  PARTICIPANT. 

The  only  two  plaintiffs  in  error  who  were  shown  by 
credible  evidence  to  have  been  present  at  the  meeting  of 
May  4,  1886,  at  the  time  of  the   explosion   of  the    bomb. 


are  Fielden  and  Spies.  Neither  of  them,  however,  had 
procured  its  being  called.  The  evidence  shows  that  it 
was  a  lawful  assemblage.  But  even  if  there  were  grounds 
to  question  its  legality,  if,  for  the  sake  of  argument,  we 
should  admit  that  the  meeting  were  an  unlawful  meeting: 
though  in  ,  that  case  all  who  attended  it  were  equally 
touched  with  its  unlawful  character;  yet  mere  presence 
at,  participation  in,  or  responsibility  for,  the  calling  of  an 
unlazvfiil  assemblage,  does  not  make  such  participants  or 
attendants  responsible  for  the  independent,  lawless  or 
criminal  conduct  of  persons  attending  that  meeting,  for- 
eign to  the  general  purposes  and  design  thereof.  Even 
if  this  meeting  of  May  4th  should  be  deemed  an  unlaw- 
ful meeting  because  of  its  purpose  or  of  its  character,  yet 
the  plaintiffs  in  error  attendant  at  that  meeting  would  not, 
for  that  reason,  be  responsible  for  a  crime  committed  at 
the  meeting  by  some  person  unknown  to  them  and  a 
stranger  to  their  counsels,  or  acting  without  reference  to 
their  views,  and  not  under  their  procurement.  The  law 
upon  this  subject  is  clearly  and  well  stated  in  i  Wharton 
Criminal  Law,  the  latter  part  of  sec.  220,  where  it  is 
said: 

"  Where  homicide  is  committed  collaterally  by  one  or 
"  more  of  a  body  unlawfully  associated,  from  causes  hav- 
"  ing  no  connection  with  the  common  object,  the  respon- 
"  sibility  for  such  homicide  attaches  exxlusively  to  its 
•'  actual  perpetrators.  ***!(:  must  also  be  remem- 
"  bered  that  a  rioter  is  not  responsible  on  an  indictment 
"  for  murder  for  a  death  incidentally  caused  by  officers 
"  engaged  in  suppressing  a  riot,  nor  in  an  aflray  are  the 
"  original  parlies  responsible  for  a  death  caused  by  strang- 
"  ers  wantonly  and  adversely  breaking  in." 

And  the  same  author  further  says  in  the  same  work, 
section  397: 


"  It  should  be  observed,  however,  That  while  the  parties 
"  are  responsible  for  consequent  acts  growing  out  of  gen- 
"  eral  design,  they  are  not  for  independent  acts  growing 
"  out  of  the  particular  malice  of  individuals.  Thus,  if 
"  one  of  the  party  on  his  own  hook  turn  aside  to  commit 
"  a  felony  foreign  to  the  original  design,  his  companions 
'■  do  not  participate  in  his  guilt.  It  must  be  remembered 
"  that  to  make  out  the  coy-pus  delicti  in  such  cases,  it  is 
"  essential  to  show  that  the  party  charged  struck  either 
"  actually  or  constructively  the  fatal  blow,  and  consented 
"  to  the  common  design." 

This  rule  is  based  upon  natural  right,  and  may  be 
stated  perhaps  in  these  words:  that   one   man's  malice 

OR    MISCONDUCT      SHALL      NOT     CREATE    ANOTHER     MAn's 
GL^LT. 

Speaking  under  this  point,  Mr.  Wharton  says  (Crimi- 
nal Law,  §  1 60): 

"  We  may  expand  this  rule  still  further,  and  hold  that 
"  the  defendant,  no  matter  how  wrongful  may  have 
"  been  his  conduct,  is  not  responsible  for  the  acts  of  in- 
"  dependent  parties  performed  on  the  objects  of  the  crime 
"  without  his  concert."  And  many  illustrations  are  given 
by  the  learned  author  in  the  section  referred  to  of  this 
doctrine,  which  show  its  reasonableness  and  propriety. 

So  Mr.  Bishop,  in  the  first  volume  of  his  work  on 
Criminal  Law,  seventh  edition,  in  his  chapter  treating 
upon  "  Combinations  of  persons  in  crime,"  speaks  as  fol- 
lows (Sec.  633): 

"A  mere  presence  is  not  sufficient;  nor  is  it  alone 
"  sufficient  in  addition,  that  the  person  present,  unknown 
"  to  the  other,  mentally  approves  what  is  done.  There 
"  must  be  something  going  a  little  further;  as,  for  exam- 
«  pie,  some  word  or  act.  The  party  to  be  charged  '  must,' 
"  in  the   language   of  Cockburn,  chief  justice,  '  incite  or 


126 

"  procure  or  encourage  l/ie  act!'  His  will  must  in  some 
"  degree  contribute  to  what  is  done." 

And  further,  the  same  author  says  in  Sec.  634  of  the 
same  work,  as  follows: 

"  From  the  proposition  that  mere  presence  at  the  com- 
"  mission  of  a  crime  does  not  render  a  person  guiltj',  it 
"  results,  that,  if  two  or  more  are  lawfully  together,  and 
"  one  does  a  criminal  thing  without  the  concurrence  of  the 
"  others,  they  are  not  thereby  involved  in  his  guilt.  *  *  * 
"  Even  where  persons  are  unlawfully  together,  and  by 
"  concurrent  understanding  are  in  the  actual  perpetration 
"  of  some  crime,  if  one  of  them,  of  his  sole  volition  and 
"  not  in  pursuance  of  the  main  purpose,  does  a  criminal 
"  thing,  in  no  waj'^  connected  with  what  was  mutually 
"  contemplated,  he  only  is  liable." 

The  learned  author  follows  with  many  cases  illustrating 
the  doctrine  thus  laid  down,  and,  in  summing  up  his  ob- 
servations on  this  subject,  he  says,  in  Sec.  641 : 

"  The  true  view  is  doubtless  as  follows:  One  is  re- 
*'  sponsible  for  what  of  wrong  flows  directly  from  his 
"  corrupt  intentions;  but  not,  though  intending  wrong, 
"  for  the  product  of  another's  independent  act.  *  *  * 
*'  If  the  wrong  done  was  a  further  and  independent 
"  product  of  the  mind  of  the  doer,  the  other  is  not  crimi- 
"  nal  therein  merely  because  when  it  was  done  he  meant 
"  to  be  a  partaker  with  the  doer  in  a  different  wrong." 

Among  the  cases  cited  by  the  authors  above  quoted  in 
support  of  the  text  as  advanced  by  theni,  we  single  out 
the  following,  by  way  of  illustrating  and  enforcing  the 
rule: 

In  Regina  v.  Sheet  el  al.,  4  Foster  &  Fin.,  N.  P.  Cases, 
931,  the  evidence  showed  that  the  defendants  were  joined 
in  the  misdemeanor  of  poaching.  Being  attacked  by  the 
gamekeeper  of  the  premises  upon  which  they  were  tres- 


127 

passing,  a  struggle  ensued,  in  the  course  of  which  the 
gun  of  Skeet  was  discharged,  icilling  the  gamekeeper. 
The  indictment  was  for  murder.  Charging  the  jury. 
Pollack,  C.  B.,  said: 

"  As  regards  the  other  prisoners — there  is  no  evidence 
^'  against  them;  and  it  is  admitted  that  they  cannot  be 
''  Hable  except  upon  the  doctrine  of  constructive  homi- 
^'  cide,  which,  as  I  have  already  laid  down,  does  not  ap- 
"  ply  where  the  only  evidence  is  that  the  parties  were 
■"  engaged  in  an  unlawful  purpose:  not  \)€m<g  felonious.  It 
*'  only  applies  in  cases  where  the  common  purpose  is 
■"  felonious,  as  in  cases  of  burglary:  where  all  the  far  lies 
■"  are  aware  that  deadly  zveapons  are  taken  with  a  view  to 
*'  inflict  death  or  commit  felonious  violence  if  resistance  is 
■"  offered.  That  doctrine  arose  from  the  desire  on  the 
■"  part  of  the  old  lawyers  to  render  all  parties  who  were 
"  jointly  engaged  in  the  commission  of  a  felony  responsi- 
•"  ble  for  deadly  violence  committed  in  the  course  of  its 
'■'•  execution.  But  that  doctrine  has  been  much  limited  in 
■"  later  times,  and  only  applies  in  cases  of  felony,  where 
■"  there  is  evidence  of  a  felonious  design  to  carry  out  the 
•"  unlawful  purpose  at  all  hazards,  and  whatever  may  be 
•"  the  consequences.  The  possession  of  a  gun  would  not 
"  be  any  evidence  of  this,  for  a  gun  is  used  in  poaching. 
"  And  poaching  of  itself  is  only  an  unlawful  act  and  a 
•*'  mere  misdemeanor.  Therefore,  as  there  is  no  evidence 
"  against  the  other  prisoners  of  complicity  in  any  such 
■"  design,  or  in  the  act  of  firing,  they  must  all  be  acquitted 
■"  both  of  murder  and  of  manslaughter." 

In  Rex  v.  Hawkins,  3  Car.  &  Payne,  392,  it  appears 
that  a  gang  of  poachers  attacked  the  gamekeeper,  beat 
bim  and  left  him  senseless  upon  the  ground,  after  which 
one  of  the  number  returned  and  robbed  him.  Under  an 
indictment   against    defendants,   and   one    Williams,   who 


did  the  robbing,  but  who  was  not  in  custody,  the  defend- 
ants were  acquitted  under  the  charge  of  Park,  Justice,, 
who,  in  his  instruction,  used  the  following  language: 

"  It  appears  to  me  that  Williams  is  alone  guilty  of  this 
"  robbery.  It  appears  that  there  was  no  common  intent  to- 
"  steal  the  keeper's  property.  They  went  out  with  the 
"  common  intent  to  kill  game,  and  perhaps  to  resist  the 
"  keepers;  but  the  whole  intention  of  stealing  the  prop- 
"  erty  is  confined  to  Williams  alone.  They  must  be 
"  acquitted  of  the  robbery." 

In  support  of  the  doctrine  of  this  case  the  learned  anno- 
tators  append  the  following  note:  "To  make  all  guilt}-,. 
"  '  the  fact  must  appear  to  have  been  committed  strictly  in- 
"  '  prosecution  of  the  purpose  for  which  the  party  was- 
"  '  assembled;  and,  therefore,  if  divers  persons  be  engaged 
"  '  in  an  unlawful  act,  and  one  of  them,  with  malice  pre- 
"  '  pense  against  one  of  his  companions,  kills  him,  the  rest 
"  '  are  not  concerned  in  the  guilt  of  that  act,  because  it 
i'  '  hath  no  connection  with  the  crime  in  contemplation.' 
"  So,  where  two  men  were  beating  a  third  in  the  street, 
"  and  a  stranger  made  an  observation  of  the  cruelty  of 
"  the  act,  and  one  of  them  stabbed  him,  this  was  not  mur- 
"  der  in  both,  though  both  were  committing  an  unlawful 
"  act;  because  only  one  of  them  intended  to  do  injury  to 
"  the  person  killed,     i  Curw.  Hawk.,  p.  loi. 

"  In  Pliijumer^s  case,  a  smuggler,  in  a  scuffle  with  the 
"  revenue  officers,  shot  one  of  his  comrades  (upon  a 
"  grudge  of  his  own);  the  question  was,  whether  the 
"  whole  gang  was  guilty  of  murder:  and  it  was  held,  that 
"  as  it  did  not  appear  that  the  gun  was  discharged  in 
"  prosecution  of  the  purpose  for  which  the  party  had  assetn- 
"  d/ed,  it  was  only  murder  in  him  who  did  it.  Cited  i  Rus- 
"  sell,  652;  Hodgson  case,  i  Leach,  6  S.  P.  And  if  sev- 
"  eral  are  out   for  the   purpose  of  committing  a  felony. 


129 

"  and  upon  an  alarm  run  different  ways,  and  one  of 
"  them  maim  a  pursuer  to  avoid  being  taken,  the  others 
"  are  not  to  be  considered  principals  in  such  act.  Rex  v. 
«   White,  Russell  &  Ry.  C.  C.  R.,  99." 

So  in  Bex  v.  Collison,  4  Car.  &  Payne's,  565,  the  doc- 
trine was  laid  down  that  in  order  to  hold  one  guilty  as  an 
accessory  before  the  fact,  it  must  be  proved  that  the  crim- 
inal act  was  the  result  of  a  covmion  purpose.  The  facts  in 
that  case  were  as  follows:  Two  private  watchmen,  seeing 
the  prisoner  and  another  person  with  two  carts  laden  with 
apples,  went  up  and  walked  along  with  them,  intending 
as  soon  as  they  could  procure  assistance  to  secure  them, 
believing  the  apples  to  be  stolen.  One  of  the  watchmen 
walked  beside  one  prisoner,  and  the  other  beside  the  other 
person  at  some  distance  from  the  first.  While  walking 
along,  the  prisoner's  companion  stepped  back,  and,  with 
a  bludgeon  which  he  carried,  struck  and  wounded  the 
watchman  with  whom  he  had  been  walking.  The  huv 
in  that  case  was  laid  down  as  follows: 

"To  make  the  prisoner  a  principal,  the  jury  must  be 
"  satisfied  that,  when  he  and  his  companion  went  out  with 
"  a  common  illegal  purpose  of  committing  the  felony  of 
"  stealing  apples,  they  also  entertained  the  common  guilty 
"  purpose  of  resisting  to  death,  or  with  extreme  violence, 
"  all  who  might  endeavor  to  apprehend  them;  but  if  they 
"  had  only  the  common  purpose  of  stealing  apples,  and 
'*  the  violence  of  the  prisoner's  companion  was  merely  the 
"  result  of  the  situation  in  which  he  found  himself,  and 
"  proceeded  from  the  impulse  of  the  moment,  without 
"  any  previous  concert,  the  prisoner  will  be  entitled  to  an 
"  acquittal." 

In  Regina  v.  Price,  8  Cox's  Criminal  Cases,  96,  the 
facts  briefly  were:  that  the  prisoners,  six  in  number,  who 
were  shipmates,  for  some  unknown  cause,  chased  a  Ger- 


I30 

man  sailor  belonging  to  another  ship  through  the  streets  of 
Falmouth,  brutally  assaulting  him,  and  as  he  took  refuge 
from  their  attack  against  a  railing,  he  was  stabbed  by  one 
of  them  with  a  knife,  of  which  wound  he  died  in  a  few 
minutes.  The  evidence  as  to  whose  hands  inflicted  the 
wound  was  absolutely  conflicting.  Two  of  the  witnesses 
who  saw  the  transaction  at  the  same  spot  and  the  same 
moment  differed  in  their  identification,  one  of  them  swear- 
ing positively  that  the  stabber  was  one  of  the  prisoners 
who  had  whiskers,  and  the  other  as  positively  swearing 
that  the  murderer  was  another  of  the  prisoners  who  had 
no  whiskers,  and  each  swore  that  he  had  marked  his 
man  at  the  time  by  this  very  peculiarity.  Byles,  Justice, 
in  charging  the  jury,  laid  down  the  law  as  follows: 

"^Six  men  were  charged  with  the  willful  murder  of  a 
"  German  sailor  by  stabbing  him.  The  deceased  was  a 
"  peaceable  unoffending  person.  The  stab  was  given  by 
"  one  individual  of  the  six.  Now,  supposing  they  could 
"  fix  upon  the  hand  that  stabbed,  the  first  question  would 
"  be  what  was  his  offense,  and  what  was  the  offense  of 
"  the  other  five.-^  The  individual  who  stabbed  was  clearly 
"  guilty  of  murder,  whether  he  intended  to  kill  or  not. 
"  If  they  could  point  out  the  man  who  gave  that  stab,  and 
"■  they  should  be  of  opinion  that  they  had  selected  the 
'•'■  right  man,  he  was  guilty  of  murder.  The  next  ques- 
"■  tion  would  be,  in  what  condition  were  the  other  five 
«  men?  The  deceased  sailor  was  leaning  against  some 
"  iron  railings  when  the  stab  was  given,  but  before  that 
"  he  had  been  assaulted  in  a  barbarous  and  dastardly 
"  manner  by  these  six  men ;  but  did  the  other  five  men 
"  contemplate  the  use  of  the  knife,  or  was  it  the  inde- 
"  pendent  act  of  the  man  who  used  it?  First,  then,  they 
''■  were  all  guilty  of  murder  if  they  participated  in  the 
"*'  common  design  and   intention   to  kill.     If    they   should 


"  think  the  others  did  not  intend  and  design  to  kill,  yet 
"  these  others  would  also  be  guilty  of  murder  if  the  knife 
"  were  used  in  pursuance  of  one  common  design  to  use 
"  it,  because  then  the  hand  that  used  the  knife  was  the 
"  hand  of  all  of  them.  Supposing  there  was  no  common 
"  design  to  use  the  knife,  if,  being  present  at  the  moment 
"  of  stabbing,  they  assented  and  manifested  their  assent 
"  by  assisting  in  the  offense,  they  were  guilty  of  murder. 
"  First,  then,  there  must  be  a  common  design  to  kill; 
"  secondly,  there  must  be  a  comtnon  design  to  use  a  mur- 
"  derous  instrument ;  thirdly,  there  must  be  presence  at 
"  the  time  and  assent  to  and  assistance  in  the  use  of  the 
"  knife.  If,  however,  the  jury  should  find  neither  of 
"  these  three  modes  of  putting  the  cases  proved  against 
"  the  five,  it  would  be  their  duty  to  find  the  stabber  guilty 
"  and  to  acquit  the  others." 

There  was  a  verdict  of  not  guilty. 

In  Duffefs  case,  i  Lewin,  C.  C,  194,  Park,  Justice, 
laid  down  the  law  that  "if  three  go  out  to  commit  a  felony 
"  and  one  of  them,  unknown  to  the  others,  puts  a  pistol  in 
"  his  pocket  and  commits  a  felony  of  another  kind,  such  as 
"  murder,  the  two  who  did  not  concur  in  this  second  felony 
"  will  not  be  guilty  of  it,  notwithstanding  it  happened  while 
"  they  were  engaged  with  him  in  the  felonious  act  for 
"  which  they  went  out." 

In  Regina  v.  Luck,  3  Foster  &  Fin,  N.  P.  Cases,  483, 
it  appears  that  more  than  nine  men,  of  whom  seven  were 
armed  with  guns,  being  out  at  night  in  pursuit  of  game, 
were  met  as  they  passed  through  a  field  from  one  wood 
to  another  by  a  party  of  gamekeepers  without  firearms, 
but  who  at  once  assaulted  them  with  sticks,  and  one  of 
them  with  a  dangerous  weapon,  a  ilail,  liable  to  inflict 
deadly  injury,  with  which  he  struck  one  of  the  parties, 
upon  which    another   one    of   them    fired   and   killed  him. 


132 

The  grand  jury  were  directed  to  throw  out  the  bills  for 
murder,  and  the  whole  party  were  indicted  for  man- 
slaughter. The  case  was  tried  before  Byles,  Justice, 
who  charged  the  jury  as  follows: 

"  The  questions  are,  who  fired  the  fatal  shot,  and  who 
"  were  parties  to  the  act?  for,  whoever  it  was  that  fired  the 
"  fatal  shot  was  clearly  guilt}^  of  manslaughter.  The  use  of 
"  the  flail,  although  it  might  reduce  the  offense  from  murder 
"  to  manslaughter,  could  not  reduce  it  any  lower.  *  *  *  So 
"  all  who  were  aiding  and  abetting  in  the  act  were  equally 
"  gtiilty  of  that  crime.  Now,  as  to  Luck — the  prisoner 
"  chiefly  charged  with  the  offense — the  chief  evidence 
"  against  him  was  that  of  an  accomplice,  and  it  was  per- 
"  fectly  true  that  the  evidence  of  an  accomplice  required 
"  corroboration,  and  that  not  merely  as  to  the  fringe  and 
"  margin  of  the  case,  but  as  to  its  substance,  and  above  all  as 
"  to  the  persons  accused ;  but  here,  although  the  accomplice 
"  who  had  been  admitted  evidence  stated  that  the  man  who 
"  fired  the  shot  was  Luck,  the  other  accomplice  who  had 
"  made  statements  inculpating  the  others — Allchin — had 
"  said  that  it  was  Burgess.  So  that  it  had  depended  merely 
"  on  the  choice  by  the  police  of  one  or  the  other  of  those 
"  prisoners  as  witnesses  for  the  crown,  whether  the  man 
'•  charged  with  firing  the  shot  would  be  Luck  or  Bur- 
"  gess;"  [as  in  the  case  at  bar,  it  depended  wholly  upon 
the  choice  by  the  representatives  of  the  state  as  to  their 
choice  between  Gilmer  and  Burnett,  the  testimony  of  both 
of  whom  they  knew  since  weeks  before  the  trial,  whether 
the  state  would  undertake  to  prove  that  the  bomb  in  ques- 
tion was  thrown  by  Schnaubelt  or  thrown  by  the  unknown 
party  described  by  Burnett.]  "The  question  then  was  as  to 
"the  other  and  independent  evidence  against  Luck;  and 
"  as  to  that,  although  there  was  ample  and  abundant  evi- 
"  dence  that  he  was  there  [which  there  is  not  as  to  Schnau- 


133 

'  belt  in  the  case  at  bar],  there  was  no  positive  evidence 
'  that  he  had  fired  the  fatal  shot.  There  was  positive 
'  evidence  that  the  gun  was  seen  pointed  at  the  game- 
'  keepers,  and  that  was  not  reconcilable  with  the  theorv 
'  of  an  accident.  There  was  evidence  of  belief  that  the 
'  man  was  Luck,  but  no  positive  evidence,  and  at  nighi, 
'  in  a  scuffle  like  this,  it  was  very  difficult  to  get  such  evi- 
'  dence.  The  jury  might  vehemently  suspect  that  Luck 
'  was  the  man  that  fired  the  gun,  but  in  a  case  of  this 
'  nature,  on  a  charge  on  which  very  serious  punishment 
'  must  follow  on  conviction,  and  on  which,  indeed,  his  life 
'  had  been  in  danger,  they  must  be  satisfied,  beyond  all 
'  reasonable  doubt,  that  he  did  fire  it  in  order  to  convict 
'  him  on  the  present  charge  on  that  ground.     But  in  the 

•  next   place,  even   assuming  that  it  could  not  be  ascer- 

•  tained  who  fired  the  shot,  all  who  were  present  and 
'  u'P.re  paj-ties  to  the  act  were  certainly  guilty;  and  it  had 
'■  been  held  and  admitted  that  if  all  were  in  a  row  or  line 

■  when  the  gun  was   pointed   and  fired,  that  would   be 

■  strong  evidence  of  a  common  purpose  or  design  to  shoot. 

■  It  is,  however,  for  your  consideration  that  though  there 
'  were  seven  guns,  only  one  was  fired,  and  it  is  not  clear 
'  that  it  v;as  fired  when  the  men  were  in  a  line.     And  on 

•  the   point,   whether   there    was   a   common    purpose   to 

■  shoot,  it  is  most  material,  for,  if  the  men  had  all  a  design 

■  to  shoot — and  many  of  them  had  guns — why  did  they  not 
'  all  shoot?     Or,  at    all  events,    why   did  not   more   than 

'  one  shoot?  This  argument  equally  applies,  whoever  it 
'  was  that  fired  the  gun.     But  if  Luck  fired  the  shot,  was 

■  it  so  fired  by  him  in  consequence  of  a  severe  personal 
■encounter  he  had  had  with  the  keeper?  If  so,  then  it 
'  would  not  be  fired  in  pursuance  of  any  common  design. 
'  A'ozv,  if  yon  cannot  say  -who  fired  the  shot,  then  von 
'  should  not  convict  any    of  the  prisoners  unless  satis-lied 


"  thai  all  of  thejn  were  parties  to  the  act."  The  jury- 
found  a  verdict  of  not  guilty  as  to  all  the  prisoners. 

A  strong  case  supporting  this  doctrine  which  we  con- 
tend for  is  Stale  v.  Hildreth,  9th  Ired.  Law,  4-10,  also  re- 
ported in  51st  Am.  Decisions,  369.  In  that  case  two 
brothers  were  present  at  the  homicide,  one  doing  the 
killing,  and  the  other  standing  by,  and  not  attempting  in 
any  way  to  interfere.  The  jur}'  were  instructed  in  effect 
on  this  state  of  facts,  that  the  bystanding  brother  was 
guilty  of  murder  if,  after  he  entered  the  field  where  the 
homicide  was  committed  and,  joining  his  brother,  he  dis- 
covered that  his  brother  intended  to  use  the  knife  in  time 
to  prevent  it,  but  did  not  act  so  as  to  effect  a  prevention. 
The  court  in  commenting  upon  this  instruction  said: 

"  We  think  it  inaccurate.  For  supposing  the  prisoner 
"  to  have  no  previous  concert  with  his  brother,  and  that 
"  during  the  combat  he  first  discovered  that  the  other  in- 
"  tended  to  use  the  fatal  weapon,  we  think  he  was  not 
"  guilty  of  murder,  although  he  made  the  discovery  in 
"  time  to  prevent  Robert  from  actually  giving  the  stab. 
"  If  one  who  is  present  and  sees  that  a  felony  is  about 
"being  committed  does  in  no  manner  interfere,  he  does 
"not  thereby  participate  in  the  felony  committed.  Every 
"  person  may  upon  such  occasion  prevent,  if  he  can,  the 
"  perpetration  of  so  high  a  crime;  but  he  is  not  bound  to 
"  do  so  at  the  peril  otherwise  of  partaking  of  the  guilt.  It 
"  is  necessary  in  order  to  convict  that  he  should  do  or 
"  say  something,  showing  his  consent  to  the  violence 
"  proposed  and  contributing  to  its  execution." 

In  an  able  note  to  the  case,  as  printed  in  the  51st  Am. 
Decisions,  the  author  says: 

"  A  mere  presence  of  a  person  at  the  place  of  the  com- 
"  mission  of  a  crime  is  not  of  itself  sufficient  to  justify  the 
"  conclusion  that  he  assents  to  it.     There  must  be  some 


^35 

"  evidence  of  his  participation  in  the  offense  to  render  him 
"  guilty  either  as  accessory  or  as  the  aider  and  abettor. 
"  His  presence  is,  of  course,  a  circumstance  which  may 
"  be  taken  into  consideration  in  determining  whether  or 
"  not  he  is  guilty  of  aiding  and  abetting.  '  In  order 
"  to  render  a  person  an  accomplice  to  the  principal  in  the 
"  felony  he  must  be  aiding  and  abetting  at  the  fact,  or 
"  ready  to  offer  assistance,  if  necessary;  therefore  if  A 
"  happeneth  to  be  present  at  a  murder,  for  instance,  and 
"  taketh  no  part  in  it,  nor  interfereth  to  prevent  it  nor 
"  punisheth  the  murderer,  nor  levyeth  hue  and  crie  after 
"  him,  this  strange  behavior,  though  highly  criminal,  will 
"  not  of  itself  render  him  either  principal  or  accessory. 
"  Foster,  350.'  "  And  a  large  number  of  cases  are  cited 
by  the  author  in  support  of  the  doctrine  of  the  text. 

So,  in  the  case  of  While  v.  The  People,  81  III,  333,  this 
court,  in  reversing  a  judgment  for  error  in  an  instruction 
in  a  case  where  two  were  present  at  the  homicide,  which 
was  committed  by  one  of  them,  but  there  was  no  evidence 
that  the  other  aided,  abetted  or  assisted  in  the  killing, 
recognize  clearly  the  distinction  for  which  we  contend, 
namely,  that  in  order  to  hold  the  defendant  guilty  as  ac- 
cessory before  the  fact  to  the  perpetration  of  a  crime, 
there  must  be  more  than  his  mere  presence  at  the  com- 
mission of  the  criminal  act,  or  even  his  consent  to  the 
perpetration  of  the  crime;  there  must  be,  within  the  con- 
templation of  our  statute,  an  aiding,  abetting  or  assisting 
in  its  perpetration.  The  language  of  this  court  upon  this 
point  is  as  follows   (page  337) : 

"  By  the  second  instruction  the  jury  are  told  that  one 
"  who  stands  by  when  a  crime  is  committed  in  his  pres- 
"  ence  by  another,  and  consents  to  the  perpetration  of  the 
"  crime,  is  a  principal  in  the  offense,  and  must  be  punished 
"  as  such.     The  law  is,  that  one  who  '  stands  by  and  aids. 


136 

•'  abets  or  assists  =•=  *  *  the  perpetration  of  the  crime  ' 
"  is  an  accessory,  and  '  shall  be  considered  as  principal, 
"  etc.     ( R.  S.,  1874,  page  393,  sec.  274.) 

"  There  is  a  plain  distinction  between  '■consenting''  to  a 
"  crime  and  '  aiding,  abetting  or  assisting  '  in  its  perpe- 
"  tration.  Aiding,  abetting  or  assisting  are  affirmative  in 
"  their  character.  The  consenting  may  be  a  mere  nega- 
"  tive  acquiescence,  not  in  any  wa}'  made  known  at  the 
"time  to  the  principal  malefactor.  Such  consenting, 
"  though  involving  moral  turpitude,  does  not  come  up  to 
'•  the  meaning  of  the  words  of  the  statute." 

We  do  not  understand  that  the  law  of  the  above  cases 
has  ever  been  seriously  questioned  or  qualified  since  its 
enunciation,  or  that  there  is  any  substantial  conflict  as  to 
the  rule  above  stated  and  considered.  Whatever  vari- 
ance may  be  found  in  the  text  writers  or  in  the  authori- 
ties will,  we  think,  be  found  to  be  simply  the  enunciation 
of  modified  or  different  rules  as  applicable  to  ditTerent  cir- 
cumstances appearing  in  the  cases  respectively. 

All  the  cases  above  quoted  proceed  upon  the  theory 
that  the  accused  was  associated  with  the  criminal  actor  in 
an  unlawful  enterprise,  but  not  a  party  by  act  or  advice 
in  the  crime.  Our  position,  of  course,  is,  that  the  Haj'- 
market  meeting  was  a  lawful  meeting  under  our  consti- 
tutions, and  tiiat  participation  in  that  meeting  and  its 
avowed  purposes  was  lawful.  At  this  meeting  an  unlawful 
act  was  done,  in  which  the  plaintiffs  in  error  did  not  par- 
ticipate, even  those  present.  Of  course,  such  presence 
would  not  cast  upon  those  who  were  there  responsibility 
for  a  crime  thus  committed.  This  position  follows  from 
the  cases  above  cited;  and  in  its  support  we  will  cite  but 
one  other  authority. 

The  case  of  U.  S.  v.  Jona,  3  Washington  C.  C'R., 
209,  is  a  strong  case  in  point.     There  the  defendant,  wiio 


was  the  first  lieutenant  of  an  American  privateer,  the  Re- 
venore,  was  indicted  for  piracy  committed  on  a  Portu- 
j;uese  vessel,  and  for  assaulting  the  Portguese  captain  and 
•crew,  and  putting  them  in  bodily  fear,  etc.  The  defend- 
ant was  charged  with  boarding  the  vessel,  and,  by  force 
and  intimidation,  taking  from  her  many  articles,  not  claim- 
ing the  vessel  as  prize,  but  pretending  that  the  Revenge 
•was  an  English  vessel,  and  that  the  articles  would  be  paid 
for  iby  an  order  on  the  English  consul. 

The  evidence  showed  that  a  part}',  of  whom  the  de- 
fendant was  one,  visited  the  Portuguese  vessel  for  the 
•ostensible  purpose  of  searching  her,  and  that  while  upon 
the  vessel,  there  were  various  acts  of  lawlessness,  includ- 
ing robbery  or  theft,  committed,  but  the  testimony  was 
•conflicting  as  to  whether  the  defendant  had  any  personal 
participation  therein.  After  presenting  to  the  jury  the 
testimony  for  their  consideration,  Washington,  Justice, 
dosed  a  very  careful  and  elaborate  charge,  as  follows: 

"  Should  you  incline  to  acquit  the  prisoner  of  any  active 
"  participation  in  this  robbery,  he  cannot  be  convicted 
■"  upon  the  ground  of  his  being  a  member  of  the  society 
"  which  committed  the  offense.  *  *  *  If  the  thing  to  be 
"  accomplished  be  lawful,  as  the  visitation  of  this  vessel 
-"  was,  and  all  but  one  of  the  party  commit  felony,  though 
"  in  the  presence  of  that  one,  but  without  his  participation, 
*'  the  crime  of  his  companions  is  not  imputable  to  him." 
There  was  a  verdict  of  not  guilty  in  the  case. 

We  therefore  maintain  that  neither  the  presence  of 
5pies  and  Fielden  at  the  Haymarket  meeting  at  the 
time  of  the  explosion  of  the  bomb,  nor  the  prior  presence 
■of  Parsons,  Fischer  and  Engel  thereat,  nor  anything  dis- 
■closed  in  this  record,  made  them  respectively  liable  crimi- 
mally  for  the  consequences  of  the  bomb-throwing. 

So    much   for   the  law,  as  we  understand  it,  applicable 


138 

to  those  of  the  plaintiff's  in  error  who  were  shown  by  the 
testimony  to  have  been  present  at  the  Haymaricet  meet- 
ing when  the  bomb  was  thrown,  but  as  to  whom  the  proof 
utterly  fails  to  show  that  they  personally  advised,  aided, 
abetted,  encouraged  or  procured  the  throwing  of  the 
missile.  Their  mere  presence  is  no  proof  of  their  guilt, 
and  does  not  attach  to  them  any  hability  for  the  conse- 
quences of  the  act  which  resulted  in  the  death  of  Mr. 
Degan;  and  the  state,  we  insist,  utterly  failed  to  make  out 
sucli  a  case  on  the  evidence  as  entitled  them  to  a  verdict 
and  judgment,  even  as  against  these  plaintiffs  in  error. 


II.       IN    ORDER     TO     HOLD    THE    ACCUSED    AS    ACCESSORIES 

ON  THE  GROUND  OF  CONSPIRACY,  THE  PRINCIPAL  ACTOR 

MUST  BE  IDENTIFIED  AS  A  CO-CONSPIRATOR. 

Let  us  now  turn  to  the  law  applicable,  in  our  judg- 
ment, to  the  case  made  by  the  stale  against  the  plaintiffs 
in  error  connected  with  or  involved  in  the  so-called  con- 
spiracy meeting  on  Monday  night.  May  3d,  and  the 
Emma  street  meeting  the  day  preceding. 

Laying  out  of  view,  for  a  moment,  our  position  upon 
the  evidence,  that  the  crime  of  the  Haymarket  was  not 
at  all  within  the  scope  or  purview  of  the  alleged  conspir- 
acy, or  agreement,  of  Monday  night,  as  demonstrated 
above  (pp.  91-93),  our  position  upon  the  law  is,  that 
there  could  be  no  legal  conviction  of  the  parties  to  that 
Monday  night  conspiracy  (in  this  case  plaintiffs  in  error, 
Fisher  and  Engel),  without  proof  beyond  all  reasonable 
doubt  that  the  bomb  was  in  fact  thrown  by  the  hand  of 
one  of  the  conspirators,  or  by  the  procurement  of  some 
of  them;  and  to  this  end,  there  must  be  such  an  identifi- 
cation of  the  doer  of  the  crime  as  brings  him  into  casual 
erlationship  zvith  tlie  alleged  conspirators. 


U9 

We  cite,  as  sustaining  this  proposition,  the  text  of 
Sec.  325  Wharton's  Criminal  Evidence,  as  follows: 
"  The  corpus  delicti,  the  proof  of  which  is  essential  to 
"  sustain  a  conviction,  consists  of  a  criminal  act;  and  to- 
"  sustain  a  conviction  there  must  be  proof  of  the  defend- 
"  ants'  guilty  agency  in  the  production  of  such  act." 
And  from  the  note  to  the  same  section  as  follows:  "  The- 
"  latter  feature,  namely,  criminal  agency,  is  often  lost  sight 
"  of,  but  is  as  essential  as  is  the  object  itself,  of  crime. 
"  Acts,  in  some  shape,  are  essential  to  the  corpus  delicti, 
"  so  far  as  concerns  the  guilt  of  the  party  accused.  A. 
"  may  have  designed  the  death  of  the  deceased,  yet,  if 
"  the  death  has  been  caused  by  another.  A.,  no  matter 
"  how  morally  guilty,  is  not  amenable,  if  he  has  done  and 
"  advised  nothing  in  respect  to  the  death,  to  the  penalties 
'•  of  the  law.     Gellius,  VII,  3." 

In  Ogden  v.  The  State,  12  Wis.,  553,  the  court  say: 
"  In  order  to  establish  the  guilt  of  Ogden,  it  was  first 
''  incumbent  on  the  prosecutor  to  prove  the  guilt  of 
"  Wright  as  alleged  in  the  indictment.  This  done,  he 
"  must  then  prove  that  Ogden  previously  procured,  hired, 
«  advised  or  commanded  Wright  to  commit  the  felony. 
"  Both  these  facts  must  be  established  by  competent  evi- 
"  dence.  Now,  however  the  confessions  of  Wright,  as 
"  to  the  first,  might  have  been  used  against  him,  had  he 
"  been  indicted  and  put  on  bis  trial,  it  is  very  evident  that 
"  as  against  Ogden  they  were  wholly  inadmissible.  As 
"  to  him,  they  were  mere  hearsay,  and  open  to  all  the 
"  objections  which  exist  to  that  kind  of  testimon}'.  I^or^ 
"  hoivever  clearly  it  may  have  appeared  that  Ogden  coiin- 
"  seled  and  advised  Wright  to  commit  the  offense,  yet,  if 
"  Wright  never  did  so  in  point  of  fact,  and  the  barn  was 
"  set  on  fire  by  some  one  else,  or  by  other  means,  then  Ogden 
"  -was  innocent  of  the  crime  of  the  commissioii  of  zvhich  he 
"  stood  charged.'''' 


140 

In  Hatchet  V.  Commomvealth,  75  Virginia,  925,  the  court 
sa}-:  "  It  is  necessary  to  show  that  the  substantive  offense, 
-"  to  which  he  is  charged  as  having  been  accessory,  has 
"  been  committed  by  the  frincipal  felon" 

There  can  be,  however,  no  principal  felon  in  contempla- 
tion of  the  law,  except  in  the  case  of  one  who  has  com- 
mitted a  crime  in  concert  with  or  at  the  instance  and  un- 
der the  advice,  or  with  the  aid  and  assistance  of  those 
who,  in  the  law,  are  called  accessories.  The  very  idea 
of  principal  felon  involves  the  idea  of  relationship  between 
himself  and  the  accessories;  involves  the  exclusion  by 
legal  evidence  of  the  idea  that  the  felony  may  have  been 
committed  sua  spoiite,  and  without  any  reference  what- 
ever to  third  parties,  and  uninfluenced  by  them.  If,  then, 
it  be  the  law  that  it  is  necessary  to  show  that  the  crime 
has  been  committed  b}'  "the  principal  felon,"  this  means 
that  is  necessary  to  show,  when  seeking  to  hold  one  re- 
sponsible as  an  accessory  to  a  crime,  that  the  hand  which 
committed  the  otTense  was,  in  law,  the  hand  of  the  ac- 
cessory; that  is,  a  hand  controlled  or  moved  by  him. 

So,  in  the  case  of  Joiics  v.  The  State,  64  Georgia,  697, 
a  judgment  finding  Jones  guilty  of  murder  as  principal  in 
the  second  degree,  he  having  been  indicted  jointly  with 
Jackson  Sellers,  as  principal  in  the  first  degree,  but  tried 
separate!}',  was  set  aside,  on  the  ground  that  //  did  not 
appear  in  the  record  that  there  was  evidence  showing-  the 
guilt  of  the  principal  in  the  first  degree;  the  court  hold- 
ing that  the  guilt  of  the  principal  in  the  first  degree  was 
necessary  to  be  established  as  a  condition  precedent  to  the 
conviction  of  the  principal  in  the  second  degree. 

We  contend  that  in  the  case  at  bar  the  state  failed  to 
show  by  credible  evidence  who  threw  the  bomb  (pp.  93- 
96).  For  this  reason  we  argue  that  no  casual  relation- 
ship between  his  act  and   the  Monday  night  conspiracy, 


or  any  other  conspiracy,  has  been  established;  and  there- 
fore, even  if  it  were  conceded  that  some  of  the  phuntiffs  in 
error  sanctioned  and  approved  of  a  crime,  such  as  was 
committed  at  the  Haymarket,  before  its  execution,  this 
alone  does  not  make  them  liable  as  accessories  to  that 
crime. 


III.  IN  ORDER  TO  HOLD  THE  ACCUSED  AS  ACCESSORIES 
ON  THE  GROUND  OF  CONSPIRACY,  THE  CRIME  CHARGED 
MUST  HAVE  BEEN  WITHIN  THE  PURVIEW  OF  SUCH  CON- 
SPIRACY   AND    COMMITTED   IN    FURTHERANCE  THEREOF. 

The  parties  to  the  alleged  Monday  night  conspiracy 
could  not,  by  reason  of  their  participation  therein,  properly 
be  adjudged  guilty,  in  view  of  the  fact  that  the  crime  of 
the  Haymarket  was  not  within  the  contemplation  of  the 
conspirators,  nor  within  the  general  scope  and  purpose  of 
the  alleged  conspiracy. 

In  the  case  of  the  Slate  v.  Lucas,  55  Iowa,  321,  the 
doctrine  is  broadly  and  correctly  laid  down,  that  "  an  ac- 
'  cessory  to  one  crime  does  not  thereby  become  ansvver- 
"  able  for  another  and  different  crime  committed  inten- 
"  tionally  by  his  principals  at  the  same  time."  The  state- 
ment of  the  case  is  very  brief  and  is  as  follows:  "  The  de- 
"  fendant,  Frank  Lucas,  was  indicted  jointly  with  Charles 
"  Wood  and  James  White  for  a  robbery  from  the  person 
"  of  R.  G.  Edwards,  perpetrated  by  assaulting  and  wound- 
"  ing  him  with  deadly  weapons.  The  defendant  was 
"  tried,  convicted,  sentenced  and  committed  to  the  peni- 
"  tentiary  for  twelve  years." 

It  appears  from  the  opinion  of  the  court  that  the  prose- 
cutor was  assaulted  by  Wood  and  White,  knocked  down 
and  robbed  on  the  night   of  August  24,  1879.     That  on 


142 

the  same  night  a  safe  in  the  mill  where  the  prosecutor  was 
night  watchman  was  blown  open  and  robbed.  Lucas  tes- 
tified that  he  had  nothing  to  do  with  robbing  Edwards, 
was  not  at  the  mill  at  all,  that  he  rowed  Wood  and  Harris 
in  a  skiff'  from  LaCrosse  to  Lansing  and  landed  near  the 
mill  about  9  o'clock,  on  the  night  of  the  robbery;  that 
Wood  and  Harris  went  up-town  and  left  him  to  watch  the 
boat;  that  afterwards  they  came  down  to  the  boat  in  a 
hurry  and  directed  him  to  row  over  to  Wisconsin;  that  on 
the  way  he  saw  them  dividing  some  money;  that  when 
ihey  reached  the  Wisconsin  shore  they  sunk  the  boat,  and 
that  on  the  way  to  LaCrosse  Wood  told  him  all  that  had 
happened  and  gave  him  two  revolvers  to  carry.  The 
court  thereupon  instructed  the  jury: 

"  If  you  believe  from  all  the  evidence  that  the  defend- 
^'  ant  did  not  leave  the  boat  after  the  arrival  at  Lansing; 
"  yet,  if  you  also  believe  that  he  had  knowledge  of  the  in- 
"  tent  of  his  associates  to  commit  crime,  either  of  robbery 
"  of  the  man  Edwards  or  of  robbing  the  safe  in  Barclay 
"  &  Hemmingway's  mill,  or  any  other  crime,  and  rowed 
"  them  ashore  for  such  purpose,  and  waited  in  the  boat 
<'  for  them  during  their  absence  in  committing  the  crime, 
"  then  you  will  find  him  guilty."  Concerning  this  in- 
struction as  applicable  to  that  case,  the  court  say: 

"  The  doctrine  of  this  instruction  is,  that  if  the  defend- 
"  ant  knew  of  the  intent  of  his  associates,  to  rob  the  safe 
"  in  Barclay  &  Hemmingway's  mill,  and  rowed  them  ashore 
"  for  that  purpose,  and  awaited  their  return,  he  is  guilty 
"  of  the  robbery  of  Edwards.  This  doctrine  is  not  cor- 
"  rect.  It  is  true,  the  accessory  is  liable  for  all  that  en- 
"sues  ufon  the  execution  of  the  unlaurful  act  contemplated ; 
•"  as,  if  A.  commanded  B.  to  beat  C,  and  he  beat  him  so 
"  that  he  dies,  A.  is  accessory  to  the  murder.  So  if  A. 
"  commanded  B.  to  burn  the  house  of  C,  and  in  doing  so 


143 

"  the  house  of  D.  is  also  burned,  A.  is  accessory  to  the 
•"  burning  of  D.'s  house.  So,  in  this  case,  if  Lucas  had 
"  knowledge  of  the  intention  to  rob  the  safe,  and  aided 
^'  and  abetted  his  associates  in  the  commission  of  that  of- 
^'  fense,  and  if,  in  furthering  that  purpose,  a  fatal  assault 
^'  had  been  made  on  Edwards,  the  defendant  would  have 
^'  been  accessory  to  the  crime. 

"  But,  if  the  accessory  order  or  advise  one  crime,  and 
^'  the  -princi-pal  intentionally  conwiit  another;  as,  for  in- 
^'  stance,  to  burn  a  house,  and  instead  of  that  he  committed 
'■'■  a  larceny;  or,  to  commit  a  crime  against  A.,  and  instead 
"  of  so  doing,  he  intentionally  commit  the  same  crime 
"  against  B.,  the  accessory  zvill  not  be  answerable.  It  follows 
"  that  the  defendant  cannot  be  convicted  of  a  robbery  of 
"  Edwards,  from  the  mere  fact  that  he  abetted  his  associates 
"  in  the  robbery  of  Barclay  &  Hemmingway's  safe." 

In  Watts  V.  The  State,  5th  W.  Va.,  532,  the  defendant 
was  charged  as  accessory  to  the  crime  of  felon}' and  burg- 
lary. There  was  proof  tending  to  show  that  Watts 
hired  two  parties  to  whip  a  man  named  Saunders;  that 
these  men  went  to  the  house  where  Saunders  was  a 
lodger,  and  pursuing  Perry  and  his  wife  to  Saunders' 
room,  knocked  Perry  down  and  ravished  Mrs.  Perry, 
Saunders  having  made  his  escape.  There  was  no  evi- 
dence that  Watts  incited  or  advised,  in  any  manner,  the 
commission  of  the  rape  upon  Mrs.  Perry,  evidence  of 
which  was  permitted  to  go  to  the  jur}'.  It  was  held  that 
this  was  error.  In  passing  upon  the  question  the  court 
uses  the  following  language: 

"  If  the  crime  by  the  principal  felon  was  committed  un- 
"  der  the  influence  of  the  flagitious  advice  of  the  other 
'  party,  and  the  event,  though  possibly  falling  out  beyond 
"  the  original  intent  of  the  latter,  was,  nevertheless,  in 
"  the  ordinary  course  of  things,  a  piobable  consequence  of 


144 

"  that  felony,  he  is  guilty  of  being  accessory  to  the  crime 
"actually  committed.  But  if  the  principal,  following  the 
"  suggestions  of  his  own  heart,  willfully  and  knowingly 
"  commit  a  felony  of  another  kind,  on  a  different  subject,- 
"  he  alone  is  guilty.  (3  Greenleaf's  Evidence,  Sec.  50.), 
"  And  if  the  principal  totally  and  substantially  departs- 
'■from  his  instructions,  as  if,  being  solicited  to  burn  a  barn^ 
'■'■  he,  moreover,  commits  a  robbery  while  so  doing''"'  [as  in< 
the  case  at  bar,  supposing  the  bomb-thrower  to  be  a. 
party  to  the  Monday  night  conspiracy,  he  threw  a  bomb- 
when  the  police  attacked  the  meeting,  instead  of  notifying: 
his  co-conspiralors  in  the  manner  agreed  upon]  '■'■he  stands: 
"  single  in  the  latter  crime,  and  the  other  is  not  heldrespons- 
"  iblefor  it  as  accessory.   (3  Greenleaf's  Evidence,  Sec. 44.); 

"  It  was  certainly  improper  to  admit  the  testimony  of 
"  Perry  and  his  wife  as  to  the  rape,  because  that  was  a 
"  distinct  substantive  ofiense  from  that  charged  in  the 
"  indictment  (r  Wharton's  Criminal  Law,  Sec.  647),  and 
"  had  no  connection  whatever  with  the  felony  charged^ 
"  because  it  was  a  total  and  substantial  departure  from. 
"  that  instruction  (3  Greenleaf's  Evidence,  Sec.  44),  and 
"  the  defendant  could  not  be  held  responsible  as  accessory 
"  thereto.  The  admitting  of  such  testimony,  being  evidence 
"  of  a  crime  ever  shocking  to  civilized  society,  was  well 
"  calculated  to  draw  away  the  minds  of  the  jurors  from. 
"  the  points  in  issue,  and  to  excite  prejudice  and  mislead 
"  them,  and  thus  prevent  a  fair  and  impartial  verdict." 

So  the  rule  is  laid  down  in  4th  Blackstone's  Comment- 
aries, page  23,  as  cited  with  approbation  in  The  State  v. 
Absence,  4  Porter,  397,  that  in  order  to  establish  the  guilt 
of  the  principal  in  the  second  degree  (accessory)  "  there 
"  must  be  a  participation  in  the  felonious  design,  or,  at  least,. 
"  the  oflense  must  be  within  the  compass  of  the  original 
"  intention  to  constitute  a  principal  in  the  second  degree."' 


145 


THE    ILLEGITIMATE    EVIDENCE. 

We  believe  we  have  in  the  preceding  pages  considered 
substantially  the  entire  testimony  which  tends  directly  to 
connect  the  plaintiffs  in  error  with  the  event  of  the  .-jth  of 
May,  1886,  or  with  the  matters  occurring  in  immediate 
connection  with  that  meeting,  and  have  stated  our  position 
thereon.  It  becomes  necessary  for  us  now  to  consider  a 
vast  amount  of  testimon}-,  which  was  introduced  on  behalf 
of  the  state  over  the  objection  of  the  plaintiffs  in  error,  and 
the  rulings  of  the  court  in  connection  with  the  introduc- 
tion of  that  testimony — testimony  much  of  which  had 
certainly  no  direct  relation  with  or  reference  to  the  throw- 
ing of  the  bomb  on  May  4,  1886,  but  which  was  allowed 
to  be  introduced  upon  the  theory  that  the  plaintiffs  in 
error  were  parties  in  a  general  combination  or  conspiracy 
to  overthrow  by  force  the  existing  order  of  society, 
which  combination  had  been  entered  into  by  them  at 
some  unknown  antecedent  date.  There  was  confessedly 
no  direct  evidence  that  they  had  so  conspired,  but  this 
conspiracy  was  attempted  to  be  made  out  by  the  proof 
of  a  series  of  facts  and  circumstances  extending  through 
a  long  period  of  time. 

The  attitude  of  the  court  in  reference  to  this  matter 
was  developed  in  connection  with  the  examination  of 
Gottfried  Waller  on  the  first  day  of  the  trial  of  the  cause 
after  the  jury  had  been  impaneled.  After  Mr.  Waller  had 
testified  as  to  the  alleged  conspiracy  meeting  of  Monday 
night,  May  3,  1886,  this  question  was  asked:  "Mr, 
Waller,  did  you  ever  have  any  bombs  ?  "  To  this  ques- 
tion objection  was  interposed  and  fully  argued.  Our  ob- 
jection to  the  question,  in  brief,  was  that  the  question 
called  for  immaterial  and  irrelevant  testimony.     Gottfried 


146 

"Waller  was  not  indicted  with  the  plaintiffs  in  error  for  the 
■murder  of  Degan,  and  whether  he  did  or  did  not  have 
Ijombs,  or  what  he  personally  did  or  did  not  do,  could 
have  no  proper  bearing  upon  the  determination  of  the 
issue  whether  the  plaintiffs  in  error  caused  the  throwing 
of  the  bomb  on  the  night  of  May  4th;  but  particularly  it 
•was  objected  that  there  was  no  limitation  in  the  question; 
it  was  not  proposed  to  inquire  of  Mr.  Waller  whether  he 
had  a  bomb  on  the  night  of  May  4th,  but  as  to  whether 
he  ever  had  a  bomb,  thus  practically  allowing  an  unre- 
stricted investigation  as  to  outside  occurrences  not  con- 
nected with  the  plaintiffs  in  error,  and  through  an 
unlimited  period  of  time.  When  the  answer  to  that  ques- 
tion came  in,  it  served  to  illustrate  the  force  of  our  objec- 
tions; being,  that  the  witness  had  a  gas-pipe  bomb  in  his 
possession  on  Thanksgiving  day,  1885,  which  he  received 
from  plaintiff' in  error  Fischer,  and  which  he  disposed  of 
subsequently  to  some  unknown  person,  who  thereafter 
exploded  it  in  a  hollow  tree.  We  desire  to  call  attention 
in  detail  to  the  ruling  of  the  court  upon  our  objection  to 
this  class  of  testimony,  and  which  he  persisted  in  during 
"the  entire  trial. 

Let  it  be  remembered  that  at  the  time  this  ruling  was 

•  announced,  the  only  conspiracy  attempted  to  be  established 
by  the  state  was  the  agreement  entered  into  at  the  Mon- 

•  day  night  meeting,  as  described  by  the  witness  Waller,  at 
which  of  all  the  plaintiffs  in  error  only  Fischer  and  Engcl 
-vere  present,  and  with  which  none  of  the  other  plaintiffs 
in  error  had  been  connected.     The  court's  ruling  was  as 

:follows  (T,  89,  cl  seq.): 

"  If  the  fact  be  that  a  large  number  of  men  concurred 
"  with  each  other  in  preparing  to  use  force  for  the  de- 
■"  struction  of  human  life,  upon  occasions  wJiicli  zvere  not 
-"  yet  Joreseen,  but  upon  some  principles  which  they  sub- 


147 

"  stantially  agreed  upon,  as,  for  example,  taking  the  words 
"  of  this  witness,  if  a  large  number  of  men  agreed  together 
"  to  kill  the  police,  if  they  were  found  in  conflict  with 
"  strikers — I  believe  is  the  phrase — leaving-  it  to  the  agents 
"  of  violence  to  determine  whether  the  titne  and  occasion 
"  had  comejor  the  use  of  the  violence,  then  if  the  time  and 
"  occasion  do  come  when  the  violence  is  used,  are  not  all 
"  parties  who  agreed  beforehand  in  preparing  the  means 
"  of  death,  and  agreed  in  the  use  of  them  upon  the  time 
"  and  occasion,  equally  liable? 

There  had  been  no  proof  whatever  in  the  record,  and 
there  was  no  proof  afterwards  introduced,  of  an  agree- 
ment between  a  large  number  of  men  to  "  kill  the  police," 
"  leaving  it  to  the  agents  of  violence  to  determine  whether 
"  the  time  and  occasion  had  come  for  the  use  of  the 
"  violence." 

Such  a  statement  of  the  witness  Waller's  testimony  was 
an  absolute  perversion  of  his  evidence.  The  witness 
Waller  had  testified  that  certain  parties  in  that  meeting 
agreed  among  themselves  that  if  the  police  should  attack 
the  strikers,  then  the  parties  to  the  alleged  agreement 
would  come  to  the  rescue  of  the  strikers,  and  join  in  the 
conflict  with  the  police.  But  the  witness  Waller  further 
had  expressly  sworn  that  nothing  was  to  be  left  to  the 
agents  of  violence,  that  is  to  sa}',  the  individual  perpetrator 
of  the  violent  act,  as  to  determining  whether  the  time  and 
occasion  had  come  for  the  use  of  violence.  On  the  con- 
trary, he  had  sworn  positively  that  a  committee  was  ap- 
pointed whose  dut)'  it  should  be  to  observe  the  movements 
throughout  the  city  generally,  and  in  the  event  of  an  attack 
by  the  police,  to  report  in  a  certain  manner  to  the  parties 
to  the  agreement,  who  were  thereupon  to  meet  at  certain 
meeting  places  in  the  outskirts  of  the  city  and  then  unitedly 
proceed  to  the  rescue  of  the  attacked  workingmen,  with 


■148 

the  understanding  that  each  group  in  its  joint  capacity- 
should  act  independently,  according  to  the  general  plan, 
(A.,  5;  1,65). 

Where  in  all  of  Waller's  testimony  can  anything  be 
found  warranting  the  suggestion  that  there  was  an  agree- 
ment entered  into  "  to  kill  the  police,"  or  whereby  it  was 
left  to  the  individual  members  of  the  conspiracy  "  to  deter- 
"  mine  whether  the  time  and  occasion  had  come  "  for  the 
use  of  violence?     The  court  then  proceeded  and  said: 

"  Suppose  the  state  are  prepared  to  prove  that  there 
"  was  a  general  combination  and  agreement  that  weapons 
"  of  death  should  be  prepared  to  use  against  the  police,  if 
"  they  came  in  conflict  with  the  workingmen  or  strikers' 
"  meetings — that  is,  if  the  police  undertook  to  enforce  the 
"  laws  of  the  state,  and  prevent  breaches  of  the  peace  and 
"  destruction  of  property,  that  then  they  would  assault 
"  and  kill  the  police,  but  the  time  and  occasion  at  which 
"  the  assault  was  to  be  were  not  foreseen,  but  were  to  be 
"  determined  by  the  parties  who  were  to  use  the  force 
"  when  in  their  judgment  the  time  and  occasion  had 
"  come,  and  then  when  the  police  are  found  attempting 
"  to  preserve  the  peace,  some  one  or  more  of  the  persons 
"  who  have  been  parties  to  this  combination  or  agreement 
"  do  kill,  are  not  all  who  entered  into  the  combination  and 
"  agreement  equally  liable?  " 

There  was  no  evidence  up  to  the  time  of  this  sugges- 
tion that  the  state  were  prepared  to  prove  a  general  com- 
bination and  agreement  "  for  the  preparation  for  weapons 
"  of  death  to  be  used  against  the  police  if  they  came  in 
"  conflict  with  the  workingmen  or  strikers'  meeting,  in 
"  an  effort  by  the  police  to  enforce  the  laws  of  the  state, 
"  prevent  breaches  of  the  peace  and  destruction  of  prop- 
"  erty";  there  was  no  proof  of  a  proposal  in  such  an 
event  to  assault  and  kill   the  police.     And   again  we   say 


149 

there  was  no  proof  that  it  was  proposed  to  leave  to  the 
determination  and  judgment  of  the  individual  using  vio- 
lence the  time  and  occasion  therefor,  and  there  was  no 
proof,  either  then  or  at  the  end  of  the  trial,  that  "  some 
"one  or  more  of  the  parties  to  the  conspiracy  did  kill." 
Could  anything  be  more  calculated  to  mislead  the  jury, 
more  calculated  to  put  into  their  minds  a  false  and  un- 
founded hypothesis  which  would  color  their  judgment 
in  the  way  of  all  the  testimon}^  that  might  be  presented 
to  them  than  a  suggestion  of  this  character  coming  out  of 
the  lips  of  the  judge  presiding? 

His  suggestions  were,  in  our  opinion,  fully  as  errone- 
ous as  would  have  been  instructions  presenting  the  same 
hypothesis.  It  is  error  for  the  court  to  suggest  in  the 
presence  of  the  jury,  either  by  instructions  or  in  the 
course  of  rulings  or  remarks,  an  hypothesis  which  is  not 
supported  by  the  testimony  before  the  jury.  The  tend- 
ency of  such  action  upon  the  part  of  the  court  is  to  lead 
the  jury  away  from  the  true  issue  and  to  set  them  to  im- 
agining things  not  suggested  by  the  testimony,  because  it 
is  made  apparent  to  them  that  such  views  are  in  the 
mind  of  the  presiding  judge. 

State  V.  Harkin,  7  Nev.,  382. 

Hair  v.  Little,  28  Ala.,  236. 

Andrews  v.  Ketcham,  77  111.,  377. 

Then  the  court  proceeded  as  follows: 

"  Unless  the  state  is  permitted  to  prove,  step  by  step, 
■"  piece  by  piece,  what  did  occur,  it  never  can  be  proved, 
"  although  it  may  have  existed.  The  only  way  in  which 
"  it  can  be  made  to  appear,  if  it  did  exist,  is  by  introduc- 
"  ing,  piece  by  piece,  what  did  occur." 

Yet  no  rule  of  law  is  better  established  than  that,  in 
the  effort  to  establish  the  guilt  of  a  party  on  the  ground 


15° 

that  he  is  a  member  of  a  conspiracy  having  an  unlaw- 
ful object  in  view,  there  must  be  at  least  a  -prima 
facie  case  made  of  the  alleged  conspiracy,  before  the 
individual  acts  and  utterances  of  one  or  other  of  the 
alleged  conspirators  can  be  given  in  evidence  as  against 
his  alleged  co-conspirators.  It  is  true  that  in  some 
jurisdictions  it  has  been  the  custom  of  the  court  to 
accept  in  lieu  of  the  proof  of  establishing  a  prima  facie 
conspiracy  the  assurance  of  the  representatives  of  the 
state  that  such  proof  would  be  produced,  the  court  hold- 
ing that  unless  such  proof  should  subsequently  be  pro- 
duced the  evidence  should  be  excluded.  But  we  do 
not  understand  that  to  be  the  rule  established  by  this 
court.  This  court  has  laid  down  the  rule,  justified  by  all 
experience,  that  the  erroneous  introduction  of  testimony 
likely  to  prejudice  a  party  to  the  litigation  is  not  cured  by 
the  subsequent  exclusion  of  that  testimony. 
Hoive  V.  Rosine,  87  111.,  105. 

This  rule  being  established  by  this  court,  there  can  be 
no  doubt  that  in  a  capital  case,  where  a  conspiracy  is  al- 
leged as  the  basis  of  liability,  the  principle  should  be 
rigidly  adhered  to  that  the  state  must  make  out,  by  legal 
evidence,  at  least  z.  prima  facie  case  of  conspiracy  before 
such  testimony  as  was  proposed  here  to  be  called  for  from 
Mr.  Waller  should  have  been  admitted  by  the  judge 
as  evidence  against  all  of  tlic  plaintiffs  in  error.  It 
may  be  that  the  burden  of  proving  a  conspiracy  is 
increased  by  adherence  to  this  rule;  but  the  rule  is  too 
well  established  to  admit  of  its  being  set  aside  at  conven- 
ience, and  it  is  too  important  to  the  just  protection  of  the 
rights  of  the  accused  to  be  lightly  disregarded.  No  sub- 
sequent ruling  in  this  case,  for  instance,  could  have  oblit- 
erated from  the  minds  of  the  jury  the    prejudice   instilled 


by  such  observations  of  the  court  as  we  are  here  criticis— 
ing,  and  by  such  testimony  as,  under  this  rule,  the  court 
permitted  to  come  before  the  jury. 

And  for  a  third  repetition  of  the  same  unwarranted 
hypothesis,  the  court  stated  as  follows: 

"  If  there  was  a  general  combination  and  agreement 
"  among  a  great  number  of  individuals  to  kill  foJiccmcn 
"  if  they  came  in  conflict  with  parties  who  they  were  the 
"  friends  of — meetings  of  workingmen  and  strikers — if 
"  there  was  a  combination  and  agreement  to  kill  the  police 
"  if  they  were  attempting  to  preserve  the  peace — if  there 
"  was  such  a  combination  and  agreement  among  a  great 
"  number  of  men,  the  object  of  which  was  something 
"  beyond  mere  local  disturbance,  it  don't  make  any  differ- 
"  ence  whether  that  object  was  to  create  a  new  form  of 
"  civil  society  or  not — if  there  was  this  combination  and 
"  agreement  among  a  great  number  of  people,  prepara- 
"  tion  for  it  to  assault  and  kill  the  police  upon  some 
"  occasion  which  might  occur  in  the  future,  and  whether 
"  the  f  roper  occasion  had  occtirred,  was  left  to  the  parties 
"  zuho  tised  the  violence  at  that  time,  and  then  that  violence 
"  was  used,  and  resulted  in  the  death  of  the  police,  every- 
"  body  who  is  a  party  to  that  combination  and  agreement 
"  is  guilty  of  the  results." 

Here  the  hypothesis  complained  of  was  changed  from 
the  form  of  a  question  to  the  enunciation  of  a  rule,  a 
rule,  we  venture  to  say,  absolutely  without  support  in  any 
accredited  authority,  as  we  will  show  more  fully  here- 
after. But  not  content  with  this  third  restatement  of  this 
proposition,  the  presiding  judge  proceeded  to  say: 

"  If  the  time  and  occasion  zvere  left  to  the  different  con- 
"  spirators,  or  to  the  different  parties  to  the  agreement, 
"  and  then  when  the  time  did   come,  in   the  judgment   of 


152 

"  some  one  of  those,  and  he  did  use  the  force  and  kill, 
"  then  they  are  all  liable." 

We  challenge  the  production  of  a  syllable  of  testimony 
to  show  that  the  plaintiffs  in  error,  or  any  of  them,  were 
parties  to  an  agreement  at  any  time  under  which  it  was 
proposed  to  use  force  and  kill,  the  time  and  occasion  of 
the  use  of  such  force  and  the  doing  of  such  homicide 
being  left  to  the  "  judgment  of  some  one  "  of  the  alleged 
conspirators. 

The  vice  of  this  hypothesis,  thus  continually  reiterated 
in  the  hearing  of  the  jury,  was  not  at  all  relieved  by  the 
fact  that  the  court  added : 

"  Whether  that  is  the  case  here  or  not  is  for  this 
"jury  to  determine,  after  they  shall  have  heard  all  of 
«  the  evidence  that  there  is  bearing  upon  that  question." 

Such  a  question  was  not  before  the  jury  upon  any  evi- 
dence that  had  up  to  that  time  been  submitted,  or  was 
thereafter  adduced  during  the  whole  trial.  Such  a  ques- 
tion was  not  before  the  jury  in  any  of  the  pleadings  in 
the  case.  The  trial  court  brought  forward  that  question 
upon  his  own  motion,  and  without  any  support  in  the 
record,  thus  suggesting  a  false  issue,  to  the  manifest 
prejudice  of  the  plaintiffs  in  error. 

Then  to  rivet  and  doubly  rivet  the  errors  above  pointed 
out,  the  court  added : 

"  I  have  not  a  particle  of  doubt  in  my  own  mind 
*•  that  it  is  entirely  competent  for  the  state  to  show, 
"  if  they  can,  that  these  several  defendants  have  advocated 
"  the  use  of  deadly  juissiles  against  the  police  upon  occa- 
«  sions  which  they  anticipated  might  arise  in  the  future — 
"  that  it  is  competent  for  them  to  show  that  they  intended 
"  that  that  use  should  be  made,  not  by  an  agreement  be/urc- 
« hand  as  to  the  specific  occasion  when  they  should  be 
"  used,  bid  that  they  should  be  used  zviien  in  the  Judgment 


153 

*'  of  the  -person  using  than  the  lime  had  come,  they  have 
*'  a  right  to  go  on  to  prove  what  they  can  upon  that  sub- 
*'ject — all  that  these  parties  have  said  and  done,  and  all 
"  preparations  which  they  have  made  in  contemplation 
-"  o£  an  attack  upon  the  civil  authorities." 

The  record  will  be  searched  in  vain  for  evidence  of 
any  such  agreement,  to  which  the  plaintiffs  in  error  were 
parties.  Certainly  Mr.  Waller  had  not  detailed  anything 
looking  in  that  direction.  Finally,  to  crown  the  vice  of 
the  entire  ruling,  the  judge  closed  as  follows: 

"  A  general  plan  of  that  sort  would  be  composed  of  a 
*'  great  multitude  of  people;  there  would  be  a  great  many 
*'  incidents;  there  would  be  a  great  many  times  and  occa- 
"  sions,  if  it  lasted  long  enough,  in  which  some  portion  of 
*'  what  they  contemplated  doing  would  be  done.  Now, 
*'  any  one  of  those  instances  or  occasions,  any  small  por- 
*'  tion  of  the  whole  which  they  contemplated,  when  it  be- 
■"  came  the  subject  of  an  investigation,  would  involve  the 
-"  showing  of  that  whole  combination  and  agreement  from 
"  beginning  to  end,  so  as  to  show,  in  fact,  that  it  was  a 
"  small  portion  of  that  great  whole,  that  it  was  in  fact  an 
"  incident  of  the  great  plan  which  they  had." 

We  need  not  further  criticise  this  most  erroneous  ruling 
and  address  in  the  presence  of  the  jury. 

From  the  time  of  its  announcement  by  Judge  Gary 
the  representatives  of  the  state  almost  entirely  aban- 
doned the  effort  to  establish  any  direct  relationship 
between  the  Monday  night  meeting  conspiracy  and  the 
throwing  of  the  bomb  at  the  Haymarket  meeting.  Under 
the  suggestion  of  the  presiding  judge  the  scheme  was 
adopted  of  establishing,  in  the  dramatic  language  of  coun- 
sel, "  a  gigantip  conspiracy  against  the  law,"  a  supposed 
■"  general  conspiracy,"  broad  enough  in  its  general  pur- 
pose to  include  every  conceivable  crime,  from  murder  and 


154 

treason  to  assaults  and  street  brawls.  The  effort  was  aban- 
doned to  show  that  the  plaintiffs  in  error  advised,  designed, 
arranged,  aided,  encouraged  or  abetted  "  the  perpetration 
"  of  the  crime,"  that  is,  the  throwing  of  the  bomb,  or  the 
commission  of  a  felony  at  the  time  and  place,  in  the  attempt 
to  execute  which  the  crime  charged  was  perpetrated. 
Not  one  instruction  was  asked  by  the  state  based  upon- 
such  a  theory.  But  the  avowed  theory  of  the  prosecution 
was  to  establish  the  responsibility  of  the  plaintiffs  in  error 
for  this  murder,  by  showing  that  they  were  engaged  in  a 
general  plan  to  bring  about,  if  necessary  by  the  use  of 
force,  a  reorganization  of  society,  the  overthrow  of  the 
existing  social  order;  the  claim  being  that  the  violence 
used  at  the  Haymarket  meeting  was  the  result  and  in 
furtherance  of  that  plan. 

Plainly  stated,  the  position  of  the  state,  sanctioned  by 
the  ruling  of  the  court,  was  substantially  this:  That  if  the 
plaintiffs  in  error  were  desiring  to  bring  about  at  some  time 
in  the  future  a  change  in  the  organization  of  society,  and 
were  expecting  and  preparing  to  use  force  in  connection 
with  the  accomplishment  of  that  design,  and  had  called  upon 
people  to  arm  themselves  and  prepare  for  the  approaching 
revolution,  then  they  should  be  responsible  as  for  murder 
for  a  death  resulting  from  violence  at  a  public  meetings 
without  proof  that  that  meeting  was  intended  by  them  to 
result  in  violence,  without  proof  that  any  violence  at  that 
meeting  was  contemplated,  advised  or  prepared  for  by 
any  of  them,  without  proof  that  any  of  them  ever  knew 
the  party  who  threw  the  bomb,  and  in  the  face  of  the 
proof  that  several  of  them  were  not  present  at  the  meet- 
ing, and  had  no  knowledge  even  of  its  holding.  As  a 
corrollary  to  this  theory,  the  representatives  of  the  state 
contended  that  these  plaintiffs  in  error  were  guilty  of 
murder  if   they  had  given  general  advice  to  the  public  to 


155 

use  violence,  leaving  it  for  the  jury  lo  guess  that  some 
individual,  acting  under  such  advice,  committed  this  par- 
ticular crime. 

Under  this  ruling  many  days  of  the  trial  were  devoted 
to  the  introduction  of  testimony  which,  in  our  judgment, 
was  totally  foreign  to  the  issue  in  this  case. 

It  would  undul}'  extend  this  argument  for  us  to  present 
this  testimony  at  length.  It  may  be  classified  with  refer- 
ence to  its  subject  matter  into  certain  divisions,  however, 
concerning  which  we  may  express  at  reasonable  length 
our  criticisms  upon  its  introduction. 


I.    NEWSPAPER  LITERATURE. 

A  vast  amount  of  literature  was  introduced  into  the 
case,  found  in  the  volume  of  exhibits,  which  in  our  judg- 
ment had  no  proper  place  in  the  trial  of  the  cause,  and 
which  could  not  but  have  a  tendency  to  jeopardize  the 
rights  of  the  plaintiffs  in  error. 

There  were  introduced  and  read  in  evidence  a  large 
number  of  editorials,  notices,  communications  and  re- 
prints (i)  from  the  files  of  the  Arbeiter  Zeitung,  running 
through  a  period  of  nearly  two  years  prior  to  the  Hay- 
market  meeting;  (2)  from  the  Alarm,  running  through 
substantially  the  same  period  of  time;  and  (3)  from  one 
number  of  the  Anarchist. 

(r.)  As  to  the  Arbeiter  Zeitung,  it  appeared  from  the 
testimony  (A.  40  ct  seq.),  that  it  was  a  German  daily 
paper,  having  a  Sunday  issue  called  Die  Fackel  and  a 
weekly  issue  called  Vorbote,  published  by  the  Socialistic 
Publishing  Society,  a  corporation  duly  organized  under 
the  laws  of  the  State  of  Illinois;  that  Spies,  Schwab, 
Fischer    and    Neebe    were    among    the    stockholders    of. 


156 

that  corporation,  and  that  Spies  and  Schwab  were 
the  editors  of  the  above  publications.  They  were 
employed  as  such  by  the  corporation  at  the  salary 
of  $i8  per  week  each.  (A.,  297,  308);  Fischer  was 
a  compositor  in  the  Arbeiter  Zeitung  office  (A.,  40). 
But  there  is  no  evidence  that  any  of  the  other  plaintiffs  in 
error  had  anything  to  do  with  the  Arbeiter  Zeitung,  or 
that  any  of  the  editorials,  communications,  quotations 
from  other  publications  or  notices  were  ever  known  to  or 
approved  by  any  of  the  plaintiffs  m  error  other  than  Spies 
and  Schwab. 

(2.)  As  to  the  Alarm,  it  appears  that  it  was  a  semi- 
monthly English  paper,  published  by  the  Socialistic  Pub- 
lishing Society,  at  107  5th  avenue,  that  Parsons  was  its 
editor  (A.,  40),  and  that,  on  one  occasion,  when  Parsons 
was  absent  from  the  cit)'.  Spies  assumed  the  temporary 
editorial  management  thereof  (A.,  308) ;  Fielden  had  two 
dollars'  worth  of  stock  in  the  Alarm;  but  aside  from 
Parsons  and  Spies,  there  is  no  evidence  showing  that  any 
other  of  the  plaintiffs  in  error  had  any  responsibility  for 
or  connection  with  the  publication  of  any  of  the  matters 
appearing  in  the  Alarm. 

(3.)  As  to  the  Anarchist,  it  appears  (A.,  83;  J,  270) 
that  its  publication  was  undertaken  because  the  par- 
ties interested  therein  were  not  satisfied  with  the  atti- 
tude of  other  socialistic  publications  in  the  city  of  Chi- 
cago. So  far  as  the  record  discloses,  there  was  but  one 
issue  of  this  paper,  and  apparently  Engel  had  some  connec- 
tion with  it,  a  note  in  the  paper  directing  that  complaints 
should  be  addressed  to  G.  Engel,  and  it  appearing  that 
in  an  address  to  the  north  side  group  he  solicited  support 
for  its  publication.  (A.,  83.)  There  is  no  evidence  that 
he  wrote  any  of  the  matters  appearing  in  the  Anarchist, 
and  no  evidence  that   any  of    the  plaintiffs   in   error   had 


any  connection  with  or  responsibility  for  the  contents  of 
the  single  issue  of  that  paper. 

Some  of  the  articles  in  the  Alarm  and  Arbeiter  Zeitung 
contained  information  or  directions  as  to  the  manufacture 
and  use  of  explosives,  sometimes  apparently  contributed 
originally  for  one  or  the  other  of  the  papers;  and  some- 
times copied  from,  and  credited  to,  other  publications. 
The  whole  information  upon  this  subject  was  such  as 
could  be  obtained  from  any  scientific  publication  treating 
upon  explosives  and  from  any  of  our  current  periodicals, 
where  such  matters  are  occasionally  considered. 

Besides  this,  the  worst  that  can  be  said  of  the  publica- 
tions referred  to  is  that  they  strongly  advocated  the  rights 
of  labor,  claimed  that  the  capitalistic  classes  robbed  the 
workingmen  of  their  due,  urged  the  wage  classes  to  pre- 
pare for  the  impending  conflict,  and  advised  them  to  arm 
themselves  with  guns,  revolvers  and  dynamite.  Partic- 
ularly the  issues  of  these  papers  within  several  months 
prior  to  the  4th  of  May  contained  much  denunciation  of 
the  capitalists,  and  predictions  that  the  eight-hour  demand 
would  not  be  complied  with,  but  that  the  attempt  by  the 
workingmen  to  enforce  it  would  result  in  violence,  owing 
to  the  determined  resistance  of  the  capitalistic  class,  sup- 
ported by  the  police,  militia  and  Pinkertons,  and  much 
exhortation  to  the  laboring  men  to  prepare  for  this  con- 
test, in  order  that  they  might  sustain  themselves  as  against 
the  attacks  which  it  was  predicted  would  be  made  upon 
them,  and  which  it  was  said  were  being  made  upon  them. 

But  all  this  matter  was  general  in  its  character,  and  had 
no  reference  to  or  bearing  upon  the  meeting  on  the  4th  of 
May,  except  that  in  the  afternoon  issue  of  the  Arbeiter 
Zeitung  of  that  date  the  circular  calling  the  meeting  and 
one  or  two  little  paragraphs  urging  the  workingmen  to 
attend  the  same  in   large   numbers   was  published;  but 


158 

even  in  that  issue  there  was  no  exhortation  to  prepare  for 
nor  any  suggestion  of  violence,  or  the  contemplated  use 
of  force  at  that  meeting.  The  meeting  was  treated  as  a 
meeting,  not  of  socialists  and  anarchists,  but  as  a  mass- 
meeting  of  wage-workers  for  the  purpose  of  agitation. 

Our  claim  is  that  all  this  mass  of  literature  which  was 
admitted  against  all  plaintiffs  in  error,  over  their  objec- 
tion and  exception,  was  incompetent,  and  that  by  its  in- 
evitable tendency  to  inflame  the  prejudices,  its  introduc- 
tion tended  manifestl}'  to  the  wrong  and  injury  of  the 
plaintiffs  in  error. 

But  particularly,  we  complain  as  to  those  portions  of 
these  publications  in  which  there  was  purported  to  be 
given  reports  of  alleged  meetings  held  in  different  parts 
of  the  city,  and  of  speeches  made  at  the  same  by  some 
of  the  plaintiffs  in  error  and  other  parties.  Our  position 
was,  and  is,  that  the  fact  of  such  meetings  or  what  occurred 
thereat  could  not  be  proved  by  any  such  published  reports, 
no  matter  in  what  publication  appearing.  The  fact  is, 
that  the  only  proof  attempted  to  be  introduced  by  the 
state  as  to  a  great  number  of  meetings  was  proof  of 
published  reports  of  this  kind. 

Let  us  illustrate  the  injurious  tendency  of  this  irrele- 
vant matter.  In  overruling  the  motion  to  instruct  the 
jur}-  to  find  a  verdict  of  not  guilty  as  to  Oscar  Neebe  at 
the  close  of  the  state's  evidence,  the  presiding  judge,  in 
assigning  grounds  for  refusing  said  motion,  amongst  other 
things,  stated  that  it  appeared  that  Oscar  Neebe  had  pre- 
sided at  socialistic  meetings.  The  only  support  for  that 
claim  is  in  the  reports  of  one  or  two  meetings  published 
in  these  papers,  in  which  it  was  stated  that  Neebe  pre- 
sided. There  was  no  attempt  made  to  identify  the  Mr. 
Neebe  alleged  to  have  presided  with  Oscar  Neebe,  the 
plaintiff  in  error  in  this  case;  and  there  was  no  attempt 


159 

•made  to  show  by  affirmative  and  competent  evidence 
that  he  was  in  fact  present  at  or  presided  over  such  meet- 
ing; while  neither  in  these  published  reports  thus 
erroneously  admitted,  nor  in  any  evidence  submitted  by 
the  state,  was  there  any  attempt  made  to  show  that 
Neebe  ever  said  a  word  at  any  of  these  meetings,  or  took 
any  part  therein,  beyond  the  published  report  of  his  occu- 
pancy of  the  chair. 

Upon  what  legal  ground  can  the  introduction  of  this 
•class  of  matter  be  justified?  Was  there  ever  before  a 
case  where  it  was  attempted  to  involve  men  in  the  conse- 
quences of  crime  by  the  wholesale  introduction  of  news- 
papers upon  the  suggestion  and  inference  that  they  were 
either  connected  in  some  way,  as  stockholders  or  other- 
wise, with  the  issuance  of  these  papers,  or  that  they  were 
supposed  to  be  in  sympathy  with  the  contents  and  atti- 
tude thereof?  We  submit  that  there  is  no  rule  of  law 
yet  established  in  our  jurisprudence  which  can  justify  the 
ruling  of  the  court  admitting  this  mass  of  testimony. 

An  inspection  of  the  volume  of  exhibits  will  further 
show  that  there  was  allowed  to  be  introduced,  over  the 
objection  and  exception  of  the  plaintiffs  in  error,  a  large 
number  of  commtmications  published  in  the  Arbeiter 
Zeitung,  the  Alarm  and  the  Anarchist.  So  far  as  the 
Arbeiter  Zeitung  is  concerned,  it  is  in  evidence  that  most 
of  these  communications  were  published  in  a  column 
which  bore  at  the  head  the  note  that  the  paper  was  not 
responsible  for  the  views  of  correspondents.  In  spite  of 
all  this,  here  was  a  large  amount  of  matter  permitted  to 
be  brought  in,  confessedly  having  no  relation  whatever  to 
the  Haymarket  meeting  or  the  occurrences  there,  the 
writers  not  even  being  identified  in  any  manner  by  the 
evidence  in  this  record.  Is  this  the  law?  Is  such  evi- 
dence competent  upon  such  an  issue? 


i6o 

Not  content  to  stop,  however,  with  this  latitude,  the 
state  went  still  further,  and,  under  the  ruling  of  the  court, 
introduced  in  evidence,  as  against  all  the  plaintiffs  in  error, 
a  translation  of  the  platform  of  the  International  Work- 
ingpeople's  Association,  adopted  in  convention  in  Pitts- 
burg in  1883,  as  published  in  the  Arbeiter  Zeitung;  in 
other  words,  a  translation  of  a  translation. 

Further  than  this,  articles  copied  by  the  Alarm  and  the 
Arbeiter  Zeitung  from  other  publications,  such  as  Truth, 
San  Francisco,  and  Die  Freiheit,  published  in  New  York, 
were  read  in  extenso;  notably  one  article  on  street  war- 
fare contributed  by  an  officer  of  the  United  States  army 
to  Truth,  and  reprinted  therefrom  (People's  Exhibit  48;. 
I  A.,  172);  and  seveial  articles  upon  explosives  published 
in  the  Freiheit  and  reprinted  therefrom. 

Another  illustration  of  the  same  matter  was  the  republi- 
cation of  an  article  by  the  Russian  nihilist,  Bakunin,  upon 
the  revolutionist;  an  article  which  has  passed  into  the  cur- 
rent literature  of  the  day  and  may  be  found  by  searching^ 
the  files  of  almost  any  of  the  great  daily  papers  published 
in  the  civilized  world  during  the  last  decade.  Even  such  a 
publication  as  this  was  permitted  to  be  read  in  evidence 
as  against  all  the  defendants,  because  it  was  found  pub- 
lished in  one  of  these  papers  referred  to. 

In  short,  the  state  was  allowed  to  ransack  the  files  of 
these  papers  for  a  period  of  years,  and  to  introduce  for 
the  consideration  of  the  jury  whatever  they  chose  to  select 
out  of  this  mass  of  printed  matter.  What  had  all  this 
matter  to  do  with  the  issue  before  the  jury?  Let  the 
tendency  of  it  be  what  it  may;  let  the  matter  be  wise  or 
unwise;  let  it  be  mistaken  in  its  claim  of  grievances, 
foolish  in  its  denunciation  of  supposed  wrongs,  unwise  in 
its  advocacy  of  proposed  remedies — still  what  has  all  this- 
matter  to  do  legitimately  with   the  issue  before  the  jury? 


ir.    JOHANN  MOST'S  BOOK. 

There  was  introduced  in  evidence,  as  against  all  the 
plaintiffs  in  error,  over  their  objection  and  exception,  a 
translation  of  Johann  Most's  book  on  the  Science  of 
Revolutionary  Warfare,  and  read  to  the  jury  in  extenso. 
(People's  Exhibit  15,  Vol.  of  Ex.;  i  A.,  142,  et  seq.)  It  is 
a  treatise  of  over  fifty  pages  of  printed  matter  upon  ex- 
plosives, and  all  the  details  of  modern  revolutionary  war- 
fare. 

Our  objection  to  the  introduction  of  this  work  was  two- 
fold. 

First,  on  account  of  its  irrelevancy  and  immateriality; 
secondly,  because  no  connection  between  this  work  and 
its  publication  to  the  plaintiffs  in  error  was  established  by 
the  evidence. 

This  book  is  openly  published  by  the  International 
News  Company  in  the  city  of  New  York,  as  appears 
from  the  imprint.  Its  writer  is  shown  by  the  evidence  to 
be  a  resident  of  that  city.  Confessedly  it  was  published 
long  before  the  Haymarket  meeting  was  dreamed  of. 
There  can  be  no  claim  that  the  writer  of  the  book  or  the 
publishers  thereof  knew  that  a  meeting  would  be  held  on 
the  4th  day  of  May,  1886,  or  at  any  other  time,  at  the 
Haymarket  in  Chicago,  or  at  any  other  place,  at  which  a 
bomb  would  be  thrown,  resulting  in  the  death  of  Mathias 
J.  Degan.  Here  was  an  entirely  foreign  matter  brought 
into  this  case  for  no  other  purpose  than  to  prejudice  the 
jury. 

But  neither  was  it  connected  by  any  legal  evidence  in 
any  manner  with  the  plaintiffs  in  error.  The  work  is  printed 
in  German.  Two  of  the  plaintiffs  in  error,  Fielden  and 
Parsons,  cannot    read    German    (A.,  269;  M,  320),  and 


l62 

therefore  never  could  have  read  this  work,  which  confess- 
edly was  never  translated  into  English  until  this 
was  done  by  the  prosecution  in  connection  with  the 
trial  of  this  case.  There  is  no  evidence  showing  that  this 
book  was  ever  in  the  possession  of  any  of  the  plaintiffs  in 
error,  nor  any  evidence  showing  that  it  was  ever  read  by 
any  of  them. 

The  evidence  by  which  the  introduction  of  this  book  in 
this  case  was  attempted  to  be  justified,  and  which  evidence 
itself,  in  our  judgment,  was  incompetent  and  came  in,  in 
each  instance,  over  the  objection  and  exception  of  plaintiffs 
in  error,  was  as  follows: 

Fricke  testified  that  he  had  seen  the  book  in  the  library 
of  the  International  Workingpeople's  Association,  in  the 
Arbeiter  Zeitung  building  (A.,  41;  I,  474);  that  Hirsch- 
berger,  the  librarian,  sold  copies  of  that  book  at  social- 
istic picnics  and  mass-meetings;  at  some  of  them  Spies, 
Parsons,  Fielden  were  present;  sometimes  Neebe,  some- 
times  Schwab,  and   perhaps  Fischer  (A.,  41;  1,475-6). 

On  cross-examination  he  admitted  that  none  of  the 
plaintiffs  in  error  had  anything  to  do  with  the  selling  of 
that  book  at  those  picnics,  and  he  could  not  even  tell  that 
any  of  them  saw  the  book  there  sold  or  exposed  for  sale. 
(A.,  42,  43;  1,485,486.) 

Schrade  says  (A.,  11;  I,  159)  he  saw  the  book  sold  at 
workingmen's  meetings,  but  does  not  say  who  sold  or 
bought  it,  or  that  any  of  the  plaintiffs  in  error  were  con- 
nected with  it. 

Seliger  testifies  that  he  saw  the  book  at  public  meet- 
ings of  the  north  side  group,  where  one  Huebner,  the 
librarian,  sold  them.      (A.,  49;  T,  532.) 

There  was  also  in  evidence  a  little  announcement  ap- 
pearing in  the  announcement  column  of  several  issues  of 
the  Arbeiter  Zeitung,  which  read  substantially  as  follows: 


i63 

"  Most's  Revolutionary  Warfare  has  arrived  and  can   be 
"  had  of  the  librarian  at  ten  cents  a  copy." 

That  this  evidence  was  inadmissible  and  incompetent, 
as  bearing  not  the  remotest  relation  to  the  Haymarket 
meeting,  and  for  the  reason  that  it  was  not  shown  that 
any  of  the  plaintiffs  in  error  ever  saw  the  book  at  that 
library,  or  knew  anything  about  its  selling  at  any  of  those 
places,  is  too  clear  for  argument.  Still,  it  was  admitted 
by  the  court,  and  used  as  the  basis  for  the  admission  of 
the  contents  of  the  book  itself.  But  does  incompetent 
evidence  become  competent  because  there  is  a  foundation 
for  it  which  is  itself  incompetent? 

Again,  Officer  Bonfield  saj's  that  Fischer  admitted  to 
him  having  read  about  fulminating  caps  in  Most's  Science 
of  War  (A.,  28;  I,  354);  and  Capt.  Schaack  states  that 
Lingg  said  to  him  he  had  learned  to  make  bombs  from 
scientific  books  of  warfare  published  by  Most,  of  New 
York  (A.,  159;  K,  507) ;  both  of  these  alleged  admissions 
were  made  after  the  4th  of  Ma)',  and  could  at  best  be 
evidence  against  Lingg  and  Fischer  respectively,  but  not 
as  against  any  of  the  other  plaintiffs  in  error.  Besides,  in 
neither  case  was  it  attempted  to  show  that  the  book  re- 
ferred to  was  the  same  as  that  introduced  in  evidence. 
Does  that  make  the  contents  of  the  book  admissible?  Sup- 
pose Lingg  had  said  he  learned  to  make  bombs  from  articles 
in  the  EncyclopEedia  Britannica  (and  information  on  that 
subject  can  be  found  there),  what  rational  man  would 
claim  that  thereby  the  contents  of  the  Encyclopedia 
Britannica  became  admissible  and  competent  evidence? 

The  introduction  of  the  book  and  the  reading  of  it  be- 
fore the  jury  could  have  no  other  tendency  than  to  stimu- 
late the  prejudices  of  the  jury,  and  possibly  arouse  their 
fears  or  at  least  their  apprehension.  And  we  confidently 
submit  that  it  is   too   clear    to    require    or   justify  further 


164 

argument,  that  the  admission  of  this  publication  in  evi- 
dence was  unwarranted  by  any  precedent,  and  contrary 
to  every  known  rule  of  law  governing  the  admissibility 
of  evidence.  Here  was  a  voluminous,  incendiary,  out- 
rageous publication,  going  into  the  detail  of  the  manu- 
facture of  explosives  and  arms,  and  the  manner  of  pre- 
paring them,  filled  with  vile  suggestions  as  to  how  to 
apply  the  results  of  modern  science  to  the  work  of  de- 
struction of  the  capitalistic  system,  abounding  in  advice  to 
persons  who,  as  members  of  the  so-called  revolutionary 
forces,  might  propose  to  engage  in  the  use  of  these 
weapons  and  explosives.  But  the  fact  remains  that  it  had 
nothing  whatever  to  do  either  in  its  contents  or  in  the 
circumstances  of  its  publication  with  the  Haymarket 
meeting,  or  the  offense  there  committed;  nor  even  with 
any  supposed  revolutionary  movement  in  the  city  of  Chi- 
cago. It  was  altogether  general  in  its  terms,  suggestions 
and  advice.  We  think  it  is  safe  to  say  that  the  state 
could  not  have  made  out  even  their  theory  of  the  con- 
spiracy to  bring  about  a  revolution  and  use  force  for  the 
overthrow  of  civil  society  against  these  defendants,  or  any 
of  them,  but  for  the  introduction  of  Herr  Most's  book, 
and  presenting  it  to  the  jury  and  inflaming  their  minds  by 
a  recital  of  the  bloody  theories  therein  suggested.  These 
theories  were  inter  alios  acta,  for  which  the  defendants 
were  in  no  wise  responsible. 


III.    VARIOUS  OBJECTS. 

Another  specification  of  incompetent  evidence  to  which 
the  plaintiffs  in  error,  in  each  instance,  objected,  was  the 
introduction  before  the  jury  of  various  objects,  particulars 
of  which  may  be  suggested  as  follows: 

First.     The  state  was  aOowed  to  introduce   and  ex- 


i6s 

hibit  before  the  jury  a  large  amount  of  soiled  clothing, 
accompanied  by  the  explanation  that  it  had  been  worn  on 
the  night  of  the  Haymarket  by  divers  officers  other  than 
Mr.  Degan;  and  as  the  soiled  and  blood-stained  garments 
were  held  up  before  the  jury,  various  holes  therein,  sup- 
posed to  have  been  made  by  fragments  of  the  shell,  were 
pointed  out.  (A.,  158;  K,  501-503.)  What  had  this 
soiled  and  rent  clothing  to  do  with  the  question  whether 
or  not  the  plaintiffs  in  error  were  responsible  for  the  death 
of  IMathias  J.  Degan?  It  was  not  his  clothing  that  was 
thus  introduced;  and  it  was  not  shown  that  the  clothing 
belonged  to  officers  who  died;  but  as  much  or  as  little  of 
this  soiled  wear  as  the  representatives  of  the  state  chose 
to  bring  into  court  was  permitted  to  be  paraded  before 
the  horrified  gaze  of  the  jury.  Was  it  for  the  purpose 
of  enabling  the  jury  intelligently  to  determine  the  issue 
before  it,  upon  the  proper  determination  of  which  rested 
the  fate  of  eight  fellow-beings,  or  was  it  a  vulgar  appeal 
to  their  passions,  fears  and  prejudices,  calculated,  if  not 
designed,  to  pervert  the  judgment  and  to  turn  justice 
awry? 

Second.  The  state  was  permitted  to  introduce  a  large 
mass  of  fragments  of  boxes,  kegs  and  other  articles  which 
had  been  fractured  in  experiments  made  by  police  officers 
after  the  4th  of  May,  and  in  some  instances  after  the  be- 
ginning of  the  present  trial,  with  dynamite,  claimed  to 
have  been  found  at  the  Arbeiter  Zeitung  office,  and  dyna- 
mite alleged  to  have  been  removed  from  bombs  found  in 
a  trunk  of  Louis  Lingg,  and  admitted  in  both  cases  to 
have  been  seized  unlawfully  and  without  warrant.  Testi- 
mony in  regard  to  these  experiments  was  given  by  Schaack 
(A.,  160,  161;  K,  516  et  seg.),  and  Buck  (A.,  60). 
Ostensibly  the  purpose  of  this  was  to  show  the  power  of 
that  dynamite.     In  making  our  objection  to  the  introduc- 


1 66 

tion  of  this  material,  the  plaintiffs  in  error  admitted  in 
open  court  that  the  material  experimented  with  was  dyna- 
mite, and  that  dynamite  was  one  of  the  most  powerful  of 
modern  explosives.  What  occasion  was  there  to  go  be- 
yond this,  and  to  bring  in  such  material  as  broken  barrel 
staves,  indented  iron,  torn  links,  etc.,  etc.?  It  may  be 
said  that  this  is  not  a  vital  point,  even  if  its  impropriety 
be  admitted;  but  we  desire  to  call  attention  to  it  as  an  in- 
dication of  what  we  think  may  be  properly  called  the  at- 
mosphere of  the  trial. 

Third.  Near  the  close  of  the  state's  case  (A.,  163)  ev- 
idence was  admitted  of  the  finding  under  a  sidewalk  of 
four  tin  cans  filled  with  some  combustible  material,  in  the 
north-western  part  of  the  city,  on  the  2d  of  June,  1886, 
more  than  four  zvecks  after  the  Hayinarkct  meeting.  Two 
views  of  one  of  these  cans  are  shown  in  the  photograph 
"  People's  Exhibit  131."  The  location  where  these  cans 
were  found  was  about  three  miles  fro7n  the  Haymarket, 
and  about  a  mile  and  a  half  away  from  Wicker  Park. 
(A.,  163;  K,  554.)  Evidence  was  permitted  to  be  intro- 
duced as  to  an  experiment  made  with  one  of  them  by  Of- 
ficer Coughlin  (A.,  164),  and  when  the  cans  were  them- 
selves allowed  to  be  introduced  before  the  jury  it  appeared 
that  they  were  provided  with  an  inner  chamber  of  glass 
filled  with  gunpowder,  and  reached  by  a  slow-burning 
fuse.  There  was  no  pretense  that  any  of  these  articles 
had  anything  to  do  with  the  murder  of  Degan.  He  was 
not  killed  by  anything  of  this  sort.  There  was  no  effort 
made  to  connect  any  of  the  plaintiffs  in  error  directly  or 
remotely  with  these  cans  or  with  their  construction.  It 
was  not  attempted  to  be  shown  that  any  of  them  had  ever 
manufactured  such  cans,  or  advised  their  manufacture  or 
use,  or  had  anything  whatever  to  do  with  the  construc- 
tion or  distribution  thereof. 


i67 

One  objection  to  the  introduction  of  these  cans  is  based 
upon  the  twofold  around  that  they  were  not  found  until 
nearly  a  month  after  the  Haymarket  meeting,  and  there- 
fore might  have  been  constructed  and  placed  where  they 
were  as  a  part  of  a  deliberate  efTort  to  manufacture  testi- 
mony for  a  conviction;  and  upon  the  further  ground  that 
there  was  no  connection  shown  between  them,  their  manu- 
facture or  disposition  and  the  plaintiffs  in  error  or  any  of 
them.  The  court  in  the  first  place  ruled  them  incompetent. 
But  upon  the  suggestion  on  behalf  of  the  state  that  such 
cans  were  described  in  Herr  Most's  book  as  adapted  for 
the  purposes  of  making  conflagrations  in  cities  where 
such  a  course  was  resolved  upon,  the  court  allowed  the 
cans  to  be  introduced  in  connection  with  the  reading  be- 
fore the  jury  of  the  description  from  Most's  book.  Thus 
Most's  book,  itself  illegitimate  evidence,  was  used  as  a 
bridge  for  introducing  other  illegitimate  evidence,  such  as 
the  tin  cans.  This,  and  the  fact  that  the  detective,  Johnson, 
described  some  such  instrument,  and  testified  as  to  having 
seen  it  in  a  meeting  of  the  American  group  (A.,  94;  J, 
408),  was  taken  as  an  excuse  for  the  introduction  into 
evidence  of  those  tin  cans,  although  there  was  no  pretense 
that  they  could  be  traced  to  the  possession  of  any  of  the 
plaintiffs  in  error,  or  that  any  one  of  them  had  any  con- 
nection with  or  knowledge  of  them.  No  attempt  was 
made  to  show  that  any  alleged  conspiracy  entered  into 
between  the  plaintiffs  in  error,  or  between  them  or  other 
parties,  contemplated  the  conflagration  of  the  city,  or  the 
use  of  implements  of  this  character  for  any  purpose.  If 
such  evidence  had  been  attempted  to  be  adduced,  it  would 
have  been  incompetent,  because  the  throwing  of  the  Hay- 
market  bomb  could  not  have  been  within  the  purview  of 
such  a  conspiracy.  In  our  judgment  the  court,  in  overruling 
our  objection,  and  allowing  this  evidence  to  go  before  the 


jury,  permitted  a  base  appeal  to  be  made  to  the  passions 
■of  the  jurors,  with  a  view  to  produce  in  their  minds  the 
impression  that  these  defendants,  as  supposed  disciples  of 
Johann  Most,  were  plotting  for  a  universal  conflagration 
of  the  city  of  Chicago. 

It  was  upon  and  by  the  introduction  of  such  testimony 
as  this  that  the  State  sought  to  support  the  charge  that 
these  plaintiffs  in  error  murdered  Mathias  J.  Degan  on 
the  night  of  May  4,  1886,  by  throwing  or  causing  to  be 
thrown  the  dynamite  bomb  whose  explosion  resulted  in 
the  destruction  of  his  life.  Further  comment  seems  to  us 
unnecessary. 

Fourth.  The  state  was  allowed  to  introduce  in  evidence 
a  galvanized  iron  structure  which  w^s  given  to  the  police 
by  Mr  Engel,  being  taken  by  him  from  his  cellar,  where 
it  had  been  stored  for  a  considerable  period  of  time. 

The  evidence  introduced  by  the  state  in  reference  to 
this  structure  was  that  the  galvanized  iron  which  formed 
the  body  of  it  was  rolled  and  cut  about  a  year  before  the 
ist  of  May,  1886,  by  a  tinner  (A.,  148;  K,  428),  upon 
the  order  of  Mr.  Engel.  Officer  Quinn  testified  that  Engel 
stated,  when  this  instrument  was  found  in  his  basement, 
that  he  thought  it  was  made  for  the  purpose  of  making 
bombs.  (A.,  147;  K,  416.I  But  the  state's  evidence 
also  showed  affirmatively  that  this  structure  had  never 
been  in  fact  used  for  any  purpose,  that  there  never  had 
been  any  fire  in  it.  (A.,  148;  K,  427.)  Yet  the  state  was 
permitted  to  show  by  the  testimony  of  Bonfield,  who 
claimed  to  be  an  expert,  that,  and  in  what  manner,  it  could 
be  used  for  the  melting  of  metals.  (A.,  148.)  What 
had  that  to  do  with  the  issue  which  the  jur}'  were  called 
upon  to  determine  in  this  case?  Was  the  introduction  of 
this  structure  legitimate,  proper?  Was  such  testimony 
relevant  and  material?     And  even  if,  by  a  stretch   of  dis- 


i69 

•cietion,  considered  competent  as  against  Engel,  was  it 
■competent  as  against  the  otiier  plaintiff's  in  error? 

Fifth.  There  were  introduced  various  flags  and  mot- 
toes containing  inscriptions,  such  as  "Every  government  is 
■"  a  conspiracy  against  the  people,"  and  the  like,  which 
■were  claimed  to  have  been  found  by  the  police  in  a  small 
room  off  the  library  in  the  Arbeiter  Zeitung  building 
(A.,  171,  172),  and  admittedly  like  all  the  other  stuff" 
found  there  taken  without  legal  warrant.  This  evidence 
was  admitted  as  against  all  the  plaintiffs  in  error. 

Sixth.  The  following  was  the  evidence  introduced  by 
the  state  in  regard  to  dynamite  found  in  the  Arbeiter 
Zeitung  building  on  May  5,  1S86,  and  admitted  as  to  all 
plaintiffs  in  error: 

Detective  Jones  and  Officer  Flynn  say  (A.,  62; 
J,  92;  A.,  65;  J,  120)  that  they  were  present  when 
a  locksmith  opened  a  desk  in  the  corner  of  the  office  on 
the  second  floor  of  the  building,  in  which  desk  was  found 
a  coil  of  fuse,  two  bars  of  d3'namite,  and  a  box  containing 
ten  fulminating  caps. 

That  these  articles  had  been  in  the  possession  of 
Mr.  Spies  for  a  long  period  appears  from  the  testi- 
mony of  Mr.  Williamson,  a  witness  for  the  state,  formerly 
a  reporter  of  the  Chicago  Daily  News,  who  says 
that  these  very  articles  were  exhibited  to  him  on  the 
might  of  the  dedication  of  the  new  board  of  trade  in 
April,  1885.  (A.,  55;  J,  7,  e/ se$^.)  Mr.  Spies  says  in 
regard  thereto  (A.,  307;  N,  68):  "I  have  had  in 
*<■  my  desk,  for  two  years,  two  giant-powder  cartridges, 
•*'  a  roll  of  fuse  and  some  detonating  caps.  Originally 
«  I  bought  them  to  experiment  with  them,  as  I  had  read 
*'  a  good  deal  about  dynamite  and  wanted  to  get  ac- 
■"  quainted  with  it,  but  I  never  had  occasion  to  go  out  for 
•"  that  purpose,  as   I  was  too  much   occupied.     The   re- 


I70 

"  porters   used  to  bother  me  a  good  deal,  and   then  when- 
"  they  would  come  to  the  office  for  something  sensational 
"  I  would  show  them   these  giant   cartridges.     They  are 
"  the  same  that  were  referred  to  here  by  certain  witnesses 
"  as  having  been  shown  on  the  evening  of  the  board  of 
"  trade   demonstration.     One    of  them   will  yet  show    a 
"  little  hole  in  which  I  put  that  evening  one  of  those  caps 
"  to  explain  to  the  reporter   how  terrible  a  thing  it  was.'^ 
Besides,  there   was  introduced   by  the   state  evidence 
tending  to  show  that  a  package  of  dynamite  was  foundi 
on  May  5th  in   the  closet   oft'  the   editorial  room   on   the 
third  floor  of  the  Arbeiter   Zeitung  building.     The  wit- 
nesses who  testify  in  regard  to  this  find  are  Officer  Duffy 
(A.,  63)  and  Officer  Marks  (A.,  138),  while  Officer  xMc- 
Keough    (A.,  64)  testifies   to   having  seen   the   package 
there,  and  Officer  Haas    (A.,  81)  says  that   he  saw   the 
package  put  on   a   chair  by  Officer  Marks.     Mr.  Spies 
says   that  he  kiiozvs  absolutely  nothing  about  that  package 
of  dynamite,  and  that    he   never  saw    it    before    it    was 
produced  in  court  during  the  trial.      (A.,  307,  16S.)     Mr. 
Lindemeyer  says  that  he  calcimined  the  Arbeiter  Zeitung 
building  from  May  2d   until  May   5th;  that   he   kept  his 
clothes  and  tools  in  the  closet  in  the  rear  of  the  editorial- 
room  of  the  Arbeiter  Zeitung,  on  the   third  floor.     On' 
May  4th,  about  noon-time,  he  made  search  for  a  missing 
brush   in  that  closet,  got  on   a  chair  and  examined  the 
shelves  in  that  closet ;  that  he  found  no  large  package, 
no  bundle,  no  dynamite  on  the  shelf;  that  there    was    no 
indication   of  greasiness  there  (A,   232;  N.  74,  e/  seg.). 
The  package  of  dynamite  being  produced  in  court,  in 
substantiall}'  the  same  shape   as  when  claimed  to  have 
been  found  in  the  Arbeiter  Zeitung  building,  and  exhibited 
to  Mr.  Lindemeyer,  he  said  that  he  saw  no  such  package 
on  May  4th  in  that  closet   so  searched   by  hira  (A.,  277;. 
N,376). 


A  very  suspicious  circumstance  regarding  the  find- 
ing of  this  dynamite  is  the  fact  that  while  Officers 
Haas  and  Marks  stated  positively  that  this  dynamite  was 
found  oti  the  third  floor  of  that  btiilding.  Officer  Duffy,  who 
was  the  first  of  these  witnesses  examined,  just  as  posi- 
tively claimed  to  have  found  the  same  on  the  second  floor 
of  the  building:  It  will  be  found  from  examination  of  the 
testimony  of  Officer  Duffy,  that  he  locates  the  room  in 
which  the  stuff  was  io\ind,flrst,  as  being  on  the  first  floor 
of  the  Arbeiter  Zeitung  office;  second,  as  on  the  second 
floor  of  the  building;  third,  as  two  floors  below  the  type- 
setting room,  and  fourth,  as  being  one  floor  below  the 
third  floor.  All  these  locations  refer  to  the  same  floor, 
namely,  the  second  -floor  of  the  Arbeiter  Zeitung  building. 
Mr.  Dufty  could  not  be  more  positive  or  unequivocal  as 
to  his  location  of  that  room.  After,  however,  the  other 
officers  had  just  as  unequivocally  and  positively  located 
the  finding  of  the  dynamite  on  the  third  floor  of  that  build- 
ing, Mr.  Dufty  was  recalled  (A.,  85),  and  stated  that,  at 
the  request  off  the  state's  attorney,  he  had  made  another 
examination  of  the  Arbeiter  Zeitung  building,  and  found 
that  he  had  made  a  mistake  in  regard  to  the  floor  on 
which  the  dynamite  was  found;  that,  in  fact,  the  closet 
from  which  it  was  taken  was  two  floors  above  the  saloon. 

That  Mr.  Spies  had  no  desire  of  concealing  any  fact 
within  his  knowledge  will  appear  from  his  whole  testi- 
mony, which  we  claim  is  a  model  of  fairness  and  can- 
dor. Nobody,  except  a  few  officers,  all  of  whom, 
at  the  time  of  their  testifying,  and  for  3'ears,  were  in  the 
detective  service  of  the  police  force,  testifies  to  having 
ever  seen  that  package  of  dynamite  in  the  Arbeiter  Zei- 
tung building  on  May  5th,  or  at  any  time  prior  thereto. 
It  is  at  least  singular  that  the  different  officers  claim  to 
have  found  it  on  different  floors  of  the  building.  Was  it 
put  there  for  the  purpose  of  manufacturing  evidence? 


172 

Seventh.  There  were  introduced  and  paraded  before 
the  jur}',  as  against  all  the  plaintiffs  in  error,  the  following 
articles  found  upon  Fischer  at  the  time  of  his  arrest:  A 
file  ground  sharp  to  an  edge,  a  revolver,  one  fulminating 
cap,  and  a  belt  and  sheath,  the  brass  buckle  on  the  belt 
bearing  the  letters  "  L.  &  W.  V."      (A.,  39,  40.) 

On  the  morning  of  the  5th  of  May,  these  articles  were  in 
the  drawer  of  a  table  in  the  composing  room  of  the  Arbeiter 
Zeitung  building.  They  belonged  to  Fischer,  and  Asch- 
enbrenner,  one  of  the  compositors,  told  him  to  take  them 
away  so  as  not  to  get  anybody  else  into  trouble.  (A.,  89, 
90.)  At  that  time  the  officers  were  engaged  in  the  build- 
ing, making  searches  and  arrests.  Fischer  strapped  the 
revolver  and  belt  upon  his  body  under  his  clothing.  On 
going  out  of  the  building  he  was  arrested.  This  testi- 
mony introduced  by  the  state  (A.,  90)  sufficiently  ex- 
plains how  these  articles  came  to  be  found  upon  Fischer's 
person  at  the  time  of  his  arrest.  There  is  no  pretense  that 
he  wore  any  of  them  on  the  night  of  the  4th  of  May, 
1886,  or  that  either  of  these  weapons  were  in  any  man- 
ner instrumental  in  producing  the  death  of  Mathias  J. 
Degan,  or  anybody  else;  yet  they  were  allowed  to  be  in- 
troduced, not  simply  as  against  Fischer  as  being  found 
upon  him  when  arrested,  but  also  as  against  all  the  plaintiffs 
in  error. 

Eighth.  The  state  was  allowed,  over  the  objection 
of  the  plaintiffs  in  error,  to  introduce  evidence  of  a 
number  of  dynamite  bombs  of  dit^erent  construction,  al- 
leged to  have  been  found  long  after  the  Haymarket 
meeting,  the  manufacture  or  possession  of  which  was 
not  traced  to  any  of  the  plaintiffs  in  error,  without  any  at- 
tempt to  establish  any  connection  between  such  "finds" 
and  any  of  the  plaintiffs  in  error.  Under  this  head  be- 
longs the  evidence  of  Officer  McNamara  (A.,  166"),  who 


173 

claimed  to  have  found  thirty  loaded  and  one  "  empty  gas- 
pipe  bombs  "  (the  latter  would  probably  be  called  a  piece 
of  gas-pipe  by  ordinary  mortals)  on  May  23d,  about 
three  weeks  after  the  Haymarket  meeting,  and  about  three 
mid  a  half  miles  distant  from  the  Haytiiarket.  For  all 
that  appears  in  this  record,  these  various  so-called  bombs 
may  have  been  manufactured  after  the  4th  of  May,  and 
placed  where  they  were  found,  for  the  express  purpose 
of  manufacturing  evidence  against  the  defendants.  We 
submit  that  the  introduction  of  such  testimony,  in  the  ab- 
sence of  the  establishment  by  legal  evidence  of  any  con- 
nection between  these  articles  and  the  plaintiffs  in  error, 
was  clearly  erroneous  and  had  a  manifest  tendency  to 
prejudice  the  case  of  the  plaintiffs  in  error.  We  again 
ask,  what  bearing  had  the  finding  of  these  bombs  upon 
the  legitimate  and  proper  determination  of  the  question 
whether  the  plaintiffs  in  error  threw  or  advised  or  caused 
to  be  thrown  the  bomb  which  killed  Degan? 


iv.  compelling  the  accused  to  iilte  evidence  against 
themsel^t:s. 

We  complain  that  the  court  erred  in  compelling  the 
plaintiffs  in  error  to  give  evidence  against  themselves.  In 
this  regard  the  court  erred  (i)  in  overruling  our  objections  to 
various  questions  asked  by  the  state  upon  cross-examina- 
tion of  the  plaintiffs  in  error,  when  upon  the  stand  as 
witnesses,  and  (2)  in  permitting  the  state  to  introduce  in 
evidence,  over  the  objections  and  exceptions  of  plaintiffs 
in  error,  a  number  of  objects  and  articles  unlawfully 
seized  by  the  representatives  of  the  state. 


174 


(l.)        IMPROPER    CROSS-EXAMINATION. 

We  understand  that  under  the  statute  allowing  defend- 
ants to  testify  in  their  own  behalf,  the  defendant,  when  he 
takes  the  stand,  is  subject  to  the  most  rigid  and  full  cross- 
examination.  But  we  do  not  understand  that  he  hereby 
subjects  himself  to  having  one  of  his  constitutional  safe- 
guards broken  down  and  being  required  to  give  evidence 
against  himself,  upon  the  pretense  of  cross-examination 
as  to  matter  which  is  not  covered  bj'  anj'  inquiry  upon 
examination  in  chief,  but  which,  if  germane  to  the  issue, 
should  have  been  introduced  by  the  state  in  the  presenta- 
tion of  its  case. 

Called  upon  the  stand  as  a  witness  in  his  own  behalf, 
Mr.  Fielden  was  definitely  interrogated,  after  a  few  gen- 
eral questions  as  to  age,  place  of  birth,  etc.,  as  to  his  oc- 
cupation, his  engagement  on  the  day  of  the  Haymarket 
tragedy,  his  actions  and  utterances  in  that  connection  and 
immediately  thereafter.  That  was  all.  He  stated  that 
he  was  a  teamster,  and  on  the  4th  day  of  May,  18S6,  he 
was  busy  hauling  stone,  according  to  his  custom,  until  a 
late  hour  in  the  afternoon.  Upon  cross-examination,  over 
the  objection  of  the  plaintiffs  in  error,  the  state  was 
allowed  to  interrogate  Mr.  Fielden  as  to  whether  he  had 
not  made  various  labor  speeches,  or  socialistic  speeches, 
at  various  places  and  on  divers  occasions.  That  he  had 
made  such  speeches  had  been  proved  by  the  state  as  a 
part  of  their  original  case.  No  effort  had  been  made  by 
Mr.  Fielden,  when  upon  the  stand,  to  contradict  the 
state's  testimony  in  that  particular.  Not  one  question 
had  been  asked  of  Mr.  Fielden  regarding  his  connection 
with  the  labor  movement,  or  speeches  made  by  him  in  its 
interest.     But  to  this   objection    it  was   answered   b}-  the 


175 

presiding  judge  that  Mr.  Fielden  had  been  examined  with 
reference  to  showing  that  his  occupation  was  that  of  a 
teamster,  the  tendency  of  which  was  to  show  that  he 
■was  leading  an  industrious  and  quiet  Hfe,  and  that  it  was 
•competent  for  the  state  in  cross-examination  to  show 
whether  that  was  his  whole  life  or  only  a  part  of  it. 
<M,  333-) 

Under  this  ruling,  Mr.  Fielden  was  required  to  answer 
such  questions  in  cross-examination  as  the  following 
(A.,   271  ctseq.): 

"  Did  you  ever  meet  with  any  other  English-speaking 
"  group  in  this  city  or  county  r" 

"  How  many  times  have  you  spoken  on  the  lake  front 
■"on  Sunday  afternoons?" 

"  Did  you  make  a  speech  there  on  the  night  of  the 
■"  opening  of  the  new  board  of  trade?" 

"  Did  you  have  anything  to  do  with  the  management 
"of  the  Alarm?" 

"  Did  you  read  the  Alarm?" 

"  Didn't  you  read  this  paper  to  keep  track  of  the 
"  socialistic  history  as  it  was  being  made?" 

We  submit  that  this  ruling  of  the  court  was  a  palpable 
violation  of  the  spirit  and  letter  of  the  constitution  and 
was  clearly  erroneous.  There  was  the  same  setting 
aside,  under  the  ruling  of  the  court,  of  this  constitutional 
safeguard,  that  no  accused  person  shall  be  compelled  to 
give  evidence  against  himself,  in  the  case  of  Spies,  who 
was  compelled  to  answer  questions  like  the  following 
(A.,  310): 

"  Were  you  in  the  habit  of  making  speeches  at  the 
meetings  of  the  American  group?" 

"  Have  you  addressed  meetings  on  the  lake  front?" 

"  Do  you  know  Herr  Most?" 

"  How  long  have  you  known  him?"  etc. 


176 

In  this  connection,  the  state  was  permitted  to  ask,  and 
the  plaintiff  in  error.  Spies,  compelled  to  answer,  questions 
as  to  his  correspondence  with  Most,  as  to  his  having  re- 
ceived or  answered  a  certain  letter  and  a  certain  postal 
card  alleged  to  have  been  written  by  Most  and  addressed 
to  Spies,  etc. 

Nothing  can  be  found  in  the  testimony  of  Mr.  Spies- 
on  his  direct  examination  by  which  it  could  be  claimed 
the  above  inquiries  are  covered.  It  was  illegitimate 
cross-examination,  it  materially  tended  to  prejudice  Mr.. 
Spies,  and  the  court  clearly  erred  in  overruling  our  ob- 
jections to  this  line  of  inquiry. 

But  not  content  with  that,  the  state  introduced  in  evi- 
dence translations  of  that  letter  itself,  as  well  as  the 
postal,  in  connection  with  the  cross-examination  of  Mr. 
Spies,  and  our  objections  to  their  introduction  were  over- 
ruled by  the  court,  and  the  letter  and  postal  admitted  as- 
evidence  against  all  the  plaintiffs  in  error. 

The  evidence  in  reference  to  this  letter  and  postal 
was  substantially  this:  They  were  found  in  the  desk 
of  August  Spies  in  the  Arbeiter  Zeitung  building  after 
his  arrest  and  upon  the  search  of  that  building. 
When  Mr.  Spies  was  upon  the  witness  stand  he  was 
compelled,  under  the  ruling  of  the  court,  to  testify,  and 
upon  this  point  the  State  made  him  their  witness,  that 
he  had  no  recollection  as  to  having  7-eceived  or  read  either 
the  letter  or  postal,  the  matter  having  entirely  passed 
out  of  his  mind;  but  he  recognized  the  handwriting  as 
that  of  Most,  and  stated  that  he  had  no  doubt  that  he  must 
have  received  the  same  in  due  course  of  mail,  as  they  were 
addressed  to  him.  But  he  did  not  think  he  had  ever  an- 
swered it,  and  he  stated  positively  that  he  never  carried  on 
any  correspondence  zvith  Most.  He  further  stated  that 
he  knows   positively  that  he  did  not  give  the  directions 


177 

where  to  ship  the  material  vientioned  in  the  letter.  (A., 
310,311). 

The  introduction  of  this  letter  and  postal  was  clearly 
illegal  and  erroneous  on  four  different  grounds: 

(i.)  This  evidence  was  immaterial  and  irrelevant  to  the 
issue  before  the  jury.  The  letter  was  dated  1S84;  it  related 
to  the  troubles  in  the  Hocking  Valley,  and  inquired  of  Mr. 
Spies  as  to  whether  a  party  named  in  the  letter,  and  rep- 
resented as  residing  somewhere  in  the  Hocking  Valley, 
was  a  reliable  and  proper  party  with  whom  to  communi- 
cate, and  in  that  connection  the  suggestion  was  made  in 
the  letter  that  the  writer  had  some  "  medicine  "  which  he 
could  send  to  the  Hocking  Valley  if  sure  it  would  i^each 
the  proper  parties.  It  was  a  letter  from  a  stranger  to 
these  proceedings,  not  one  charged  as  jointly  liable  with 
the  plaintiffs  in  error  for  participating  in  their  design;  a 
letter  of  questionable  import,  which  was  not  answered  by 
its  recipient.  Can  such  a  letter  be  competent  evidence 
even  against  a  party  to  whom  it  was  addressed,  let 
alone  a  number  of  otlier  parties  joined  with  him  in 
the  defense,  who  are  not  shown  to  have  ever 
seen,  heard  of  or  in  any  way  been  connected 
with  it?  What  was  the  purpose  of  the  introduction  of 
this  letter  into  this  case?  Was  it  to  prove  that  Mr.  Most 
was  desiring  to  help  the  miners  in  the  Hocking  Valley 
to  commit  deeds  of  violence  by  furnishing  them  with  the 
necessary  material  for  that  purpose?  There  was  no  sug- 
gestion in  the  letter  that  Mr.  Spies  was  a  party  to  any 
such  plan,  or  that  any  dynamite  or  "  medicine  "  was  to  be 
forwarded  by  him  or  through  him.  The  inquiry  upon 
that  branch  was  simply  as  to  whether  Mr.  Spies  knew 
the  party  named  and  his  character.  What  had  the  Hock- 
ing Valley  troubles  in  1884,  settled  years  before  the  Hay- 
market   tragedy,  to   do   with    the    throwing  of   the  bomb 


178 

apon  the  night  of  the  4th  of  May,  1886?  Was  the  real 
purpose  of  the  forcing  of  this  letter  into  the  record  to 
plant  in  the  minds  of  the  jury  by  illegitimate  evidence 
the  suspicion  of  some  combination,  arrangement  or  under- 
standing between  Mr.  Most  and  the  plaintiffs  in  error, 
because  of  his  letter  and  postal  addressed  to  Mr.  Spies? 
If  this  was  the  real  purpose  sought  to  be  accomplished 
through  the  introduction  of  this  evidence,  then  we  re- 
spectfully submit  that  the  purpose  condemns  the  action 
of  the  court  as  strongly  as  does  the  law. 

(2.)  This  evidence  came  in  through  illegitimate  cross- 
examination.  Nothing  in  regard  to  it,  nothing  by  which 
these  matters  can  be  conceived  to  have  been  covered,  was 
adverted  to  upon  the  direct  examination  of  Mr.  Spies.  In 
other  words,  it  was  new  matter  elicited  from  the  plaintiff 
in  error.  It  was  therefore  a  compelling  a  witness  to  give 
evidence  against  himself  and  a  palpable  violation  of  the 
constitutional  safeguard  mentioned.  This  court  has  held 
that  illegitimate  cross-examination  of  the  defendant  in  a 
criminal  case  is  ground  for  a  reversal. 

Gifford  V.  People,  87  111.,  210,  214. 

(3.)  It  is  never  competent  to  introduce  in  evidence 
against  a  party  an  unanswered  letter  addressed  to  him, 
even  when  found  among  his  effects  and  in  his  possession, 
without  evidence  that  the  letter  has  been  acted  upon  or 
invited  by  the  party  to  whom  it  is  addressed,  and  even 
where  a  tacit  recognition  is  claimed,  the  whole  corre- 
spondence which  constitutes  the  recognition  must  be  given. 
In  support  of  this  proposition,  we  cite: 

Wharton's  Criminal  Evidence,  9th  Edition, 
§§  644  and  682. 

The  case  of  Commonwealth  v.  Ed  overly,  lotii  Allen,  1S4, 
is  directl}'  in  point.  The  defendant  there  was  indicted  for 
having  counterfeit  money  in  his  possession,  knowing  it  to 


179 

be  counterfeit.  There  was  offered  in  evidence  a  letter 
received  by  the  defendant  from  the  post-ofFice,  immediately 
before  his  arrest,  containing  one  or  more  of  the  counter- 
feit bills,  but  which  letter  was  not  read  by  him,  nor  an- 
swered by  him,  being  seized  upon  the  arrest  of  the  de- 
fendant, immediately  after  its  receipt.  The  Supreme 
court,  in  reversing  the  case,  used  the  following  language 
(p.  187): 

"  An  unanswered  letter  is  inadmissible,  although  the 
"  statements  contained  in  it  are  well  known  to  the  party 
"  to  whom  it  was  sent;  and  this  is  held  on  the  ground 
"  that  a  letter  written  to  a  party  by  a  third  person,  to 
"  which  no  reply  is  made,  does  not  show  an  acquiescence 
"  in  the  facts  stated  in  the  letter.     *     *     * 

"  It  would  be  an  immaterial  error  if  the  contents  of  the 
*' letter  were  unimportant;  but  on  looking  at  them  it  is 
"  clear  that  they  were  of  a  nature  to  prejudice  the  minds 
*'  of  the  jury  against  the  defendant." 

The  case  was  reversed  solely  on  this  ground. 

(4.)  This  evidence  was  illegal  on  the  ground  that 
the  letter  and  postal  referred  to  were  seized  without  war- 
rant of  law.  But  this  leads  us  to  the  second  subdivision  of 
our  complaints  under  this  head: 


II.     Objects  unlawfully  seized. 

Officer  Jones  says  (A.,  62;  J,  91,  ei  scq.)  he  was 
present  on  May  5th  at  the  Arbeiter  Zeitung  office  when 
a  locksmith  opened  different  drawers  in  different  offices. 
The  locksmith  opened  the  desk  in  the  corner  of  the  office 
on  the  second  floor  of  the  building.  In  the  drawer  of 
the  desk  he  found,  among  other  things,  a  number  of 
letters  directed    to    Mr.  Spies.      (A.,  63;  J.,   106.)      He 


i8o 

had  no  search   warrant    in  going  through    the  building. 

(J--  i03>  4-) 

Officer  Flynn  was  with  Officer  Jones  at  the  time  he 
searched  the  desk  of  Mr.  Spies.  He  says  [A.,  65) :  "  We 
"  found  this  box  of  letters  (indicating);  they  were  all 
"  found  in  Mr.  Spies'  drawer;  l/ie  desk  u'as  fried  open. 
"  1  took  the  letters,  put  them  into  this  box,  carried  them 
"  to  the  station  and  delivered  them  to  Mr.  Furthmann  " 
(assistant  state's  attorney). 

This  search  and  seizure  being  in  palpable  violation  of 
the  provisions  of  the  federal  constitution,  fourth  amend- 
ment, and  of  the  constitution  of  the  State  of  Illinois,  we  re- 
spectfully submit  that  the  admission  of  any  of  this  matter 
in  this  record  was  improper,  as  being  in  effect  a  compel- 
ling of  the  plaintiffs  in  error  to  give  testimony  against 
themselves  contrary  to  the  provision  of  the  fifth  amend- 
ment of  the  federal  constitution  and  to  the  provision  of 
article  2  of  our  constitution  of  1S70.  In  support  of  this 
position  we  cite  Boyd  v.  The  United  Slates,  116  U.  S., 
616.  The  case  is  a  very  late  one  and  very  full)'  con- 
sidered by  the  Supreme  court,  and  the  opinion  very  ably 
presents  the  views  of  that  tribunal. 

This  case  arose  upon  the  question  of  the  constitution- 
ality of  the  act  of  Congress  providing  that  upon  any  com- 
plaint for  violation  of  the  revenue  laws  the  parties  accused 
are  required  by  the  courts  to  produce  their  books,  in- 
voices and  papers  for  inspection  and  for  use  in  evidence 
against  them ;  and  upon  their  failure  to  do  so  the  aver- 
ments of  the  complaint  would  be  taken  against  them  as 
confessed.  The  Supreme  court  of  the  United  States,  after 
citing  and  commenting  at  length  upon  various  decisions, 
amongst  others  the  opinion  of  Lord  Camden  in  Entick  v. 
Carrington,  19th  Howell  State  Trials,  1,029,  proceeds  as 
follows: 


"  The  principles  laid  down  in  this  opinion(of  Lord  Cam- 
den) affect  the  very  essence  of  constitutional  liberty  and 
security.  They  reach  further  than  the  concrete  form  of 
the  case  then  before  the  court  with  its  adventitious  cir- 
cumstances; they  apply  to  all  invasions  on  the  part  of 
the  government  and  its  employes  of  the  sanctity  of  a 
man's  home  and  the  privacies  of  life.  It  is  not  the 
breaking  in  of  his  doors  and  the  rummaging  of  his  draw- 
ers that  constitutes  the  essence  of  the  ofiense,  but  it  is 
the  invasion  of  his  indefeasible  right  of  personal  secu- 
rity, personal  liberty  and  private  propert)%  where  that 
right  has  never  been  forfeited  by  his  conviction  of  some 
public  offense; — it  is  the  invasion  of  this  sacred  right 
which  underlies  and  constitutes  the  essence  of  Lord 
Camden's  judgment.  Breaking  into  a  house  and  open- 
ing boxes  and  drawers  are  c'-xumstances  of  aggrava- 
tion ;  but  any  forcible  and  compulsory  extortion  of  a 
man's  own  testimony,  or  of  his  private  papers  to  be  used 
as  evidence  to  convict  him  of  crime,  or  to  forfeit  his 
goods,  are  within  the  condemnation  of  that  judgment. 
In  this  regard  the  fourth  and  fifth  amendments  run 
almost  into  each  other.  *  *  *  Any  compulsory 
discovery  by  extorting  the  party's  oath,  or  compelling 
the  production  of  his  private  books  and  papers,  to 
convict  him  of  crime,  or  to  forfeit  his  propert}^  is  con- 

'  trary  to  the  principles  of  a  free  government.  It  is  ab- 
horrent to   the  instincts  of  an  Englishman;  it  is  abhor- 

'  rent  to  the  instincts  of  an  American.  It  may  suit  the 
purposes    of   despotic  power,  but    it  cannot    abide  the 

■  pure    atmosphere    of    political    liberty    and     personal 

•  freedom.  *  *  *  Wg  are  further  of  opinion  that 
'  a    compulsory    production    of    the    private  books    and 

•  papers  of  the  owner  of  goods  sought  to  be  forfeited 
'  in    such    a    suit    is     compelling    him   to    be    a    witness 


"  against  himself,  within  the  meaning  of  the  fifth  amend- 
"  ment  to  the  constitution,  and  is  the  equivalent  of 
"  a  search  and  seizure — and  an  unreasonable  search 
"  and  seizure —within  the  meaning  of  the  fourth  amend- 
"  ment.  Though  the  proceeding  in  question  is  di- 
"  vested  of  many  of  the  aggravating  incidents  of  actual 
"  search  and  seizure,  yet,  as  before  said,  it  contains  their 
"  substance  and  essence,  and  effects  their  substantial  pur- 
"  pose.  It  may  be  that  it  is  an  obnoxious  thing  in  its 
"  mildest  and  least  repulsive  form;  but  illegitimate  and 
"  unconstitutional  practices  get  their  first  footing  in  that 
"  way,  namely,  by  silent  approaches  and  slight  deviations 
"  from  legal  means  of  procedure.  This  can  only  be  ob- 
"  viated  by  adhering  to  the  rule  that  constitutional  pro- 
"  visions  for  the  security  of  persons  and  property  should 
•'  be  liberally  construed.  A  close  and  literal  construc- 
"  tion  deprives  them  of  half  their  efficacy,  and  leads  to 
"  gradual  depreciation  of  the  right,  as  if  it  consisted  more 
"  in  sound  than  in  substance.  It  is  the  duty  of  courts  to 
"  be  watchful  for  the  constitutional  rights  of  the  citizen 
"  and  against  any  stealthy  encroachments  thereon.  Their 
"  motto  should  be  obsia  principiisy 

A  vast  amount  of  other  evidence  was  introduced  which 
comes  directly  within  the  principle  laid  down  in  the  case 
of  Boyd  v.  U.  S.,  supra,  as,  for  instance,  all  of  the  mat- 
ter taken  from  the  Arbeiter  Zeitung  building,  including 
manuscripts,  type,  flags  and  mottoes,  the  dynamite 
cartridges,  percussion  caps  and  fuse  taken  from  the  desk 
of  Mr.  Spies,  the  articles  taken  from  Fischer's  person  at 
the  time  of  his  arrest,  etc.,  etc.  That  all  these  articles 
were  unlawfully  obtained  by  the  representatives  of  the  state 
appears  from  the  testimony  of  Bonfield  (A.,  29,  I,  368), 
Slayton  (A.,  39,  I,  460),  Furthmann  (A.,  43)  and  others. 

Perhaps  the  most  striking  illustration  of   the  violation 


i83 

of  this  constitutional  safeguard  was  the  introduction  iil 
evidence  of  a  bunch  of  keys  (A.,  62;  J.,  94),  which 
Officer  Jones  says  he  got  from  Detective  Bonfield,  and 
tried  into  the  drawer  where  he  found  the  dynamite,  fuse 
and  the  letters  referred  to.  (A.,  62;  J.,  91,  92.)  As  to 
the  manner  in  which  these  keys,  which  were  permitted  to 
be  introduced  in  evidence,  were  obtained  from  Mr.  Spies, 
Detective  Bonfield  testifies  as  follows  (A.,  29;  I.,  369); 
"  I  took  Spies  and  Schwab  into  the  front  room  of  the 
"  Central  Station ;  we  searched  Spies,  and  took  the  per- 
"  sonal  effects  from  him ;  /  took  Mr.  Spies'  keys  out  of  his 
'■^pocket;  everything  I  found,  little  slips  of  paper,  etc.  / 
"  literally  went  through  him.  1  had  no  warrant  for  any- 
"  thing  of  that  kind" 

These  searches  and  seizures  were  clearly  within  the 
prohibition  of  the  federal  and  the  state  constitutions.  The 
entries  and  seizures  were  clearly  unauthorized  and 
illegal;  and  this  character  is  not  taken  ofi:"  by  the  fact 
that  they  were  made  by  those  claiming  to  be  in  the  act 
the  representatives  of  law,  the  servants  of  the  govern- 
ment. Nay,  the  lawlessness  of  this  act  is  all  the  more 
reprehensible  in  view  of  the  parties  to  this  conduct. 

Unless  we  are  prepared  to  say  that  the  law  laid  down 
by  the  Supreme  court  of  the  United  States  in  the  case  of 
Boyd  V.  U.  S.  is  all  nonsense  and  sentimentality,  then  all 
of  this  matter  which  came  in  over  the  objection  and  ex- 
ception of  all  the  plaintiffs  in  error  was  evidence  extorted 
from  them,  and  there  was  error  in  the  rulings  of  the 
court  in  admitting  the  same. 

The  principle  is  the  same  as  that  by  which  it  is  neces- 
sary to  show  that  the  confession  of  a  defendant  was  not 
obtained  by  holding  out  promises  or  threats  to  him,  be- 
fore his  confession  is  admissible  in  evidence  against  him. 
Wharton's  Crim.  Ev.,  §§  646,  et  seq. 


184 


y.     SPEECHES  AND  PRITATE    UTTERANCES    OF  PLAINTIFFS 
IN  ERROR. 

Evidence  was  permitted  to  be  offered  as  against 
all  the  plaintiffs  in  error  of  speeches  and  private 
utterances  made  by  certain  of  them  running  through 
an  interval  of  about  two  years  prior  to  the  Hay- 
market  meeting,  such  speeches  being  made  at  various 
places  of  gathering,  notably  on  Sunday  afternoons  on 
the  lake  shore,  at  the  meetings  of  the  American  group 
of  the  International  Workingpeople's  Association  at  a 
hall  at  54  West  Lake  street,  and  other  halls,  meetings 
of  workingmen  at  West  Twelfth  Street  Turner  Hall,  at 
Mueller's  Hall,  and  at  others;  also  speeches  made  at 
Market  square  on  Thanksgiving  da}',  1885,  and  on  the 
night  of  the  dedication  of  the  new  board  of  trade  build- 
ing in  the  city  of  Chicago,  April  30,  1885.  At 
none  of  these  meetings  were  there  present  more  than 
two  or  three  of  the  plaintiffs  in  error,  and  two  of  them, 
namely,  Fischer  and  Neebe,  are  not  shown  to  have  spoken 
at  any  of  these  meetings,  while  a  large  number  of  them 
was  held  before  Louis  Lingg  had  come  to  the  United 
States;  still  this  evidence  was  in  each  case  permitted  to 
come  in  as  against  all  of  the  plaintiffs  in  error,  over  their 
objection  and  exception  and  against  the  special  objection 
and  exception  in  each  instance  of  the  plaintiffs  in  error 
not  present  on  the  occasion  of  said  respective  speakings. 
And  the  evidence  included  not  only  speeches  made  b}- 
plaintiffs  in  error,  but  also  speeches  made  by  others 
at  the  same  meetings,  the  meetings  being  in  ever}- 
instance  public,  in  many  cases  outdoor  meetings,  and  at- 
tended by  large  numbers  of  persons,  not  only  those  in 


^85 

sympathy  with  the  views  of  the  speakers,  but  also  those 
•opposed. 

At  no  one  of  these  meetings  from  the  beginning  to  the 
■end  of  the  series  will  it  be  pretended  there  was  any 
•special  reference  to  the  Haymarket  meeting,  or  to  the 
initiation  of  revolution  at  that  or  any  other  particular  date. 
The  talk  was  general  in  its  character. 

To  emphasize  our  objection  to  this  class  of  testimony, 
and  at  the  same  time  to  show  its  unreliable  character  in 
many  instances,  we  shall  call  attention  to  some  of  the 
occasions  testified  of. 


(«.)     The  Meeting  on  the  night  of  the  opening  of 
THE  NEW  Board  of  Trade. 

Concerning  the  proceedings  and  utterances  on  the 
evening  of  the  dedication  of  the  board  of  trade  of 
the  city  of  Chicago,  occurring  in  April,  1885,  it  ap- 
pears that  a  meeting  of  wage-workers  was  held  on  the 
Market  square,  and  from  there  organized  a  procession 
which  marched  down  to  the  neighborhood  of  the  chamber 
of  commerce;  being  met  by  cordons  of  police  on  the 
different  streets,  and  prevented  from  getting  nearer  to  the 
building  than  a  block  upon  either  side,  marched  around 
the  building,  halting  at  one  point,  and  sang  the  Marseillaise, 
and  thence  marched  to  5th  avenue  in  front  of  the  Arbeiter 
Zeitung  building,  where  the  crowd  was  briefly  addressed 
from  the  windows  of  the  building  by  Parsons  and  Fielden, 
after  which  they  dispersed. 

Detective  Sullivan's  testimony  (A.,  80,  81),  with 
which  detective  Trehorn  (A.,  77,  ct  seq.)  sub- 
stantially agrees,  is  to  the  effect  that  at  the  Mar- 
ket  square  Parsons    made    a    speech     about    the    board 


1 86 

of  trade,  showing  by  figures  how  the  poor  man  was^ 
robbed;  then  he  denounced  the  police  as  blood-hounds, 
the  militia  as  servants  of  the  capitalists,  robbing  the  labor- 
ing classes,  and  invited  them  all  in  a  body  to  go  to  the 
board  of  trade,  force  their  way  into  it,  and  partake  of  the 
twenty-dollar  dishes  at  that  supper.  Fielden  spoke  after 
Parsons,  denouncing  the  police  and  militia  as  blood- 
hounds, and  urging  the  crowd  to  force  themselves  in  to- 
the  board  of  trade  and  partake  of  that  twenty-dollar 
supper;  at  the  time  of  this  speaking  there  was  a  company 
of  militia  drilling  upon  the  Market  square,  to  which 
Schwab  called  attention,  arid  the  witness  and  detective 
Trehorn  went  over  and  requested  them  to  leave,  which 
they  did.  Then  they  formed  a  procession,  some  carrying; 
red  flags,  marching  around  the  board  of  trade  and  finally 
stopping  at  107  5th  avenue.  Parsons  then  spoke  from 
the  window  again,  denouncing  the  policemen  and  militia 
as  blood-hounds,  stating  that  they  had  stopped  them  from 
going  into  the  board  of  trade;  that  a  good  many  of  his 
audience  could  not  afford  to  pay  twenty  cents  for  a  meal, 
let  alone  twenty  dollars;  and  that  if  they  would  follow 
him  he  would  raid  different  places,  mentioning  Marshall 
Field's;  then  Fielden  spoke  from  the  window  and  wanted 
the  crowd  to  follow  him;  that  arguments  had  failed,  and 
they  would  have  to  use  the  gun  and  dynamite.  As  to  the 
occurrences  while  the  procession  was  in  motion,  and  during 
and  after  the  speeches  from  the  window  at  5th  avenue, 
the  witnesses  named  are  substantially  corroborated  by  AL 
H.  Williamson,  a  reporter.  (A.,  54,  55.)  These  witnesses 
admit,  however,  that  no  movement  was  made  or  attempted 
from  sth  avenue,  but  the  crowd  quietly  dispersed  and 
went  home.  Parsons  and  Fielden  stepped  quietly  back 
from  the  window  into  the  rooms  of  the  building,  and  re- 
mained there  until  after  the  audience  had  dispersed.    SuUi- 


i87 

van,  Trehorn  and  Williamson  then  had  a  conversation' 
with  Parsons  in  the  room  from  which  the  addresses  had 
been  made,  while  Fielden,  Spies  and  Schwab  were  in  the 
room,  in  which  they  say  they  were  shown  a  dynamite 
cartridge,  a  coil  of  fuse,  and  some  fulminating  caps. 
Parsons  made  some  talk,  as  to  the  possible  use  of  dyna- 
mite in  the  future  in  the  event  of  contests  with  the  police,, 
and  spoke  of  its  power  as  an  explosive,  and  said,  in  answer 
to  an  inquiry  by  them,  that  they  did  not  attack  the  board 
of  trade  building  that  night  because  the  blood-hounds 
were  in  the  way,  and  they  were  not   prepared  for  action. 

The  testimony  of  Sullivan,  Trehorn  and  Williamson 
differs  materially  from  that  of  another  witness,  detective 
Johnson,  called  by  the  prosecution,  who  testifies  with  ref- 
erence to  the  same  occurrence.  While  the  first  three 
witnesses  testified  simply  from  recollection  as  to  alleged 
proceedings  and  utterances  occurring  about  fifteen  months 
before  they  were  upon  the  stand  as  witnesses,  Johnson,  in 
testifying,  had  before  him,  for  the  purpose  of  refreshing 
his  recollection,  detailed  reports  in  zvriting,  which  had 
been  made  by  him  officially  to  the  superintendent  of  Pin- 
kerton's  national  detective  agency,  by  which  he  was  em- 
ployed (A.,  94) ;  and  it  appeared  from  endorsements 
thereon  that  these  reports  were  at  some  time  submitted 
to  other  parties  for  examination,  most  of  them  being 
endorsed  by  the  name  of  Lyman  J.  Gage.  (A.,  103; 
K,  2.) 

Johnson's  testimony,  based  upon  his  written  reports, 
and  fortified  by  them  directly,  contradicts  the  testi- 
mony of  the  three  witnesses  above  mentioned,  as  to 
what  was  said  in  all  the  speeches  on  the  occasion 
in  question,  in  the  matter  of  any  suggestion  or  pro- 
posal to  use  violence.  Testifying  from  h's  notes,  he 
says  (A.,  97;  J,  402)  that  at  this   meeting  on  the  night  of 


the  30th  of  April,  1885,  Parsons  and  Fielden  were  pres- 
ent; that  Parsons  said  they  had  assembled  to  determine 
in  what  way  best  to  celebrate  the  dedication  of  the  new 
board  of  trade  building.  Fielden  said:  "I  want  all  the 
"  workingmen  in  Chicago  to  arm  themselves  and  sweep 
"the  capitalists  oft" the  face  of  the  earth."  Parsons  then 
said:  "  Every  workingman  in  Chicago  must  save  a  little 
"  of  his  wages  each  week  until  he  can  buy  a  Colt  re- 
"  volver  and  Winchester  rifle,  for  the  only  way  that 
"  workingmen  can  get  their  rights  is  at  the  point  of  the 
"  bayonet.  We  want  you  to  form  a  procession  now,  and 
"we  will  march  to  the  board  of  trade;  we  will  halt  there, 
"  and  while  the  band  is  playing,  we  will  sing  the  Mar- 
"  seillaise."     Witness  was  himself  in  the  procession. 

On  cross-examination  (A.,  1:03;  5,450,457)  he  stated 
that  he  never  at  any  of  the  meetings  heard  of  an  arrange- 
ment for  blowing  up  the  board  of  trade  building  or  any 
other  building  in  the  city  of  Chicago,  or  for  taking  the  life 
of  any  one,  or  for  the  sacking  of  any  store  in  the  city  of 
Chicago.  At  the  meeting  on  the  night  of  the  opening  of 
the  new  board  of  trade,  no  violence  was  proposed  in  any 
of  the  speeches:  witness  heard  of  no  proposal  of  violence  of 
any  kind.  He  heard  Parsons  when  he  first  got  up  state 
the  object  of  the  meeting;  heard  Fielden  speak  and  Par- 
sons when  he  replied,  and  was  there  when  the  procession 
moved.  Parsons  said  there  were  the  board  of  trade  men 
sitting  down  to  this  twenty-dollar  supper,  while  the  poor 
workingmen  had  to  starve;  but  witness  did  not  hear  either 
Parsons  or  Fielden  or  anybody  else  say  that  they  would 
go  down  by  force  into  the  board  of  trade  and  eat  of  that 
twenty-dollar  stiff  cr ;  he  says  he  was  listening  all  the  time. 

The  importance  of  this  testimony  of  Johnson,  in  its  con- 
tradiction of  the  testimony  of  Williamson,  Sullivan  and 
Trehorn,  cannot   be    overestimated.     Johnson  was  a  Pin- 


i89 

kerton  detective,  who,  under  the  direction  of  that  agency, 
joined  the  socialists  in  Chicago;  became  a  member  of  the 
American  group,  and  attended  through  nearly  one  year 
substantially  all  of  their  meetings,  making  written  reports 
of  what  he  heard  and  saw  there  (A.,  94).  He  swears 
positively  that  he  heard  no  proposal  to  invade  the  board 
of  trade  building  by  force,  to  take  the  supper  there  by 
force,  to  blow  up  that  building,  or  any  other  building  in 
the  city  of  Chicago,  to  sack  any  building  or  place,  and 
that  he  never  heard  such  propositions  in  any  of  the  meet- 
ings he  attended,  and  of  which  he  made  detailed  reports. 
If  the  testimony  of  this  witness  is  reliable,  and  he  is  ac- 
credited by  the  state,  and  certainly  had  no  inducement  to 
favor  the  plaintiffs  in  error,  and  testified  "  by  the  book," 
then  the  testimony  of  the  other  witnesses  as  to  this  board 
of  trade  meeting  must  be  taken  with  much  allowance. 

Now,  what  had  all  this  testimony  about  the  occurrences 
on  the  night  of  the  dedication  of  the  new  board  of  trade 
building  to  do  with  the  Haymarket  meeting  and  the  kill- 
ing of  Degan  thereat? 


(3.)     The    West    i2th   Street   Turner   Hall 
Meeting. 

Take,  as  another  illustration,  the  testimony  of  M.  E. 
Dickson,  formerly  a  Times  reporter  (A.,  113),  con- 
cerning a  meeting  at  West  12th  street  Turner  Hall. 
Witness  says  that  this  was  a  meeting  publicly  called 
for  the  discussion  of  the  socialistic  platform;  that  a 
circular  had  been  issued,  in  which  public  men,  clergy- 
men, employers  and  others  were  invited  to  be  pres- 
ent to  discuss  the  question;  that  the  hall  was  crowded; 
that  during  the  meeting  Parsons,  Fielden  and  Spies  spoke. 


1 90 

Parsons  referring  to  the  degradation  of  labor,  claiming 
it  was  brought  about  by  what  was  known  as  the  rights  of 
private  property,  and  from  statistics  showing  that  the 
average  man  with  a  capital  of  five  thousand  dollars  was 
enabled  to  make  four  thousand  a  year  and  thus  get  rich, 
while  his  employe,  who  made  money  for  him,  obtained 
but  three  hundred  and  forty  dollars;  that  there  were  over 
two  million  heads  of  families  in  the  United  States  who 
were  in  want,  or  bordering  upon  want,  and  it  would  be 
hard  for  the  man  who  stood  in  the  way  of  liberty  and 
equality  to  all.  Fielden  said  that  the  majority  were  starv- 
ini^  because  of  over-production;  that  as  a  socialist  he  be- 
lieved in  the  equal  right  of  every  man  to  live;  that  the 
present  condition  of  the  laboring  man  was  due  to  the 
domination  of  capital,  and  they  could  expect  no  remedy 
from  legislatures;  that  there  were  enough  present  in  that 
hall  to  take  Chicago  from  the  grasp  of  the  capitalists; 
that  capital  must  divide  with  labor;  and  that  the  time  was 
coming  when  a  contest  would  arise;  he  was  no  alarmist, 
but  the  socialist  should  be  prepared  for  the  victory  when 
it  did  come.  Spies  spoke  in  German,  advising  the  work- 
ingmen  to  organize  in  order  to  obtain  their  rights,  and 
that  they  might  be  prepared  for  the  emergency.  Then 
resolutions  were  adopted  denouncing  the  capitalistic  class 
and  those  who  had  refused  to  come  and  hear  the  truth 
spoken  and  discuss  the  question. 


(c.)    The  American  Group. 

A  large  amount  of  evidence  was  permitted  to  be  intro- 
duced in  reference  to  the  meetings  of  the  American  group, 
so  called,  particularly  in  connection  with  the  testimony  of 
Johnson,  the  Pinkerton  detective. 


It  appears  from  the  testimony  that  Parsons,  Fielden 
and  Spies  were  members  of  the  American  Group  of  the 
International  Workingpeople's  Association.  The  latter 
is  an  association  of  working  people  throughout  the  civil- 
ized world,  formed  for  the  purpose  of  agitating  for  a 
•change  in  the  existing  social  conditions.  The  meetings 
of  the  American  group  were  always  ^public  and  open  to 
everybody.  Those  who  joined  the  group  were  furnished 
with  a  membership  card,  the  dues  were  ten  cents  per 
month;  but  if  any  person  was  unable,  or  for  any  reason 
indisposed  to  pay  the  dues,  he  did  not  thereby  lose  his 
membership  or  standing  in  the  society.  All  this  appears 
from  the  testimony  of  Johnson  himself.  (A.,  102.)  It 
also  appears  that  the  attendance  of  these  meetings  was 
never  larger  than  tivenly-five  people  (A.,  56;  J,  24), 
and  that  the  proceedings  were  always  reported  in  the 
newspapers  the  next  morning  (A.,  56;  J,  r6.) 

The  effect  of  the  testimony  referred  to,  which  came 
in  under  objection,  was  that  at  the  various  meetings  of 
this  group  there  were  speeches,  statistical  and  otherwise, 
and  airing  of  the  supposed  grievances  of  the  working  peo- 
ple, urging  to  organize,  and  advice  to  prepare  and  arm 
for  resistance  against  the  alleged  oppressions  which  they 
were  suffering.  But  there  is  no  pretense  that  the  American 
group,  in  any  of  its  meetings,  ever  considered  the  holding 
of  the  Haymarket  meeting  or  the  use  of  violence  in  con- 
nection with  the  same.  It  was  therefore  irrelevant  and 
incompetent,  and,  because  prejudicial,  its  admission  was 
•error.  What  place  f.  i.  had  in  this  record  the  testimony 
of  Johnson,  that  at  the  meeting  of  March  22,  1885,  a 
resolution  of  sympathy  was  introduced  by  a  man  named 
Bishop,  not  one  of  the  plaintiffs,  for  a  girl  alleged  to  have 
teen  outraged  by  her  master,  a  man  of  high  social  stand- 
ing, and  whose  case   had  been  refused  consideration   by 


192 

the  magistrate  to  whom  it  was  presented.  Johnson  says 
that,  in  connection  with  the  offering  of  this  resolution,  Mr. 
Spies  stated  in  effect  that  this  was  a  fine  opportunity-  for 
some  young  man  to  go  and  shoot  the  wrongdoer,  and  thus 
avenge  the  girl.  (A.,  96;  I,  394-5.)  He  was,  however, 
compelled  to  admit  upon  cross-examination  that  here,  also, 
his  memory  ran  beyond  his  report;  for,  with  his  report  be- 
fore him,  he  had  to  admit  (A.,  103 ;  J,  440  )  that  his  zvriltcn 
official  report  states  that  another  man,  named  Keagan, 
made  that  remark,  and  that  no  such  remark  is  there  at- 
tributed to  Spies.  Was  lestimon}-  of  this  kind  admissible? 
But  we  go  a  step  beyond,  to  consider  the  unarmed 
"  armed  section  "  of  the  American  group,  of  which  John- 
son testifies  in  c.xtenso.  (A.,  98,  99.)  He  describes  a 
meeting  at  which  the  suggestion  was  made  that  those 
members  of  the  American  group  who  desired  to  do  so 
could  join  the  armed  section,  and  that  thereupon  a  number 
of  them,  including  himself,  expressed  their  wiUingness  to 
become  members  thereof.  Fielden  and  Parsons  also 
belonged  to  it.  Several  meetings  were  held  at  which 
the  members  present  were  put  through  certain  marching 
maneuvers,  but  they  zvere  never,  in  fact,  armed;  never 
practiced  or  drilled  vjilh  arms.  Johnson  also  describes  an 
alleged  improved  dynamite  bomb  which  he  claims  was 
exhibited  there  by  the  drill-master  at  the  first  meeting. 
Certain  it  is  that  the  armed  section,  so-called,  was  simply 
an  unarmed  body  of  less  than  a  score  of  men — members 
of  the  American  group — who  held,  all  told,  probably  not 
more  than  half  a  dozen  meetings,  in  which  they  drilled 
simply  in  marching  maneuvers.  There  is  no  pretense 
that  this  "  armed "  section  without  arms  called  the 
Haymarket  meeting,  or  plotted  the  throwing  of  the  bomb 
or  any  other  violence  at  the  same.  This  testimony,  as  all 
of  Johnson's,  came  in  under  objection.      (A.,  95;  J,  391.) 


193 


[d.)     Private  Conversations  of  Mr.  Spies. 

(i.)  Luther  Moulton  and  Georji;e  W.  Shook  testified 
that  on  the  22d  of  February,  18S5,  at  Grand  Rapids,  in  the 
State  of  Michigan,  Spies  stated,  in  a  conversation  with 
them,  that  he  belonged  to  an  organization  whose  purpose 
was  the  reorganization  of  society  upon  a  more  equitable 
basis,  that  the  laboring  man  might  have  a  better  and  a 
fairer  division  of  the  products  of  labor;  that  he  expressed 
no  confidence  in  the  ballot  as  a  means  to  accomplish  this 
end,  and  stated  that  force  and  arms  was  the  only  way  in 
which  the  result  could  be  reached;  that  they  were  pre- 
pared for  such  a  demonstration  in  Chicago,  and  in  all  the 
commercial  centers  of  the  country;  that  they  had  about 
three  thousand  men  organized  in  Chicago;  that  they  had 
superior  means  of  warfare;  that  they  would  rapidly  gain 
accessions  to  their  ranks,  if  they  were  successful,  from  the 
laboring  men,  to  whom  they  would  hold  out  inducements. 
The  demonstrations  would  be  made  when  laboring  men 
were  idle  in  large  numbers.  He  thought  there  might  be 
bloodshed,  for  that  happened  frequently  in  the  case  of 
revolution,  which  might  be  crime  if  the  revolution  failed, 
but  not  otherwise.  Moulton  says  that  no  details  were 
given  in  regard  to  the  means  or  mode  of  warfare,  but 
thinks  the  term  "  explosives  "  was  used  in  connection  with 
arms,  though  he  remembers  nothing  definite;  that  noth- 
ing was  said  about  the  police  or  militia,  except  in  general 
terms  that  they  were  prepared  to  successfully  resist  and 
destroy  such  forces.  (A.,  20,  21.)  This  testimony  came 
in  over  the  objections  and  exceptions  of  the  plaintiff's  in 
error,  and  particularly  of  those  other  than  Spies,  and  a 
motion  to  exclude  it  was  likewise  overruled.  Testimouy 
of  declaratory  statements  made  in   a  -private  conversation 


194 

iy  Spies  outside  of  this  stale,  a  year  and  a  quarter  before 
the  Haymarket  evening,  was  here  admitted  not  only  as 
evidence  against  Spies,  but  against  all  plaintiffs  in  error. 
(2.)  Harry  Wilkinson  testified  (A.,  67  et  seq.)  that  he 
was  a  reporter  for  the  Chicago  Daily  News,  and  in  Janu- 
ary, 1886,  had  several  interviews  with  Spies,  as  a  result 
of  which  he  wrote  up  an  article  published  in  the  Chicago 
Daily  News  of  January  14th.  He  says  that  he  was  in- 
troduced to  Spies  for  the  purposes  of  that  conversation, 
■«hich  occurred  at  the  Arbeiter  Zeitung,  by  Joseph 
Gruenhut.  Later  Mr.  Gruenhut,  Mr.  Spies  and  Mr. 
Wilkinson  went  to  a  restaurant  together,  where  Mr. 
Wilkinson  set  up  the  wine,  and  a  conversation  ensued, 
illustrated  by  Mr.  Spies  by  the  use  of  tooth-picks  laid 
upon  the  table-cloth,  in  which  Mr.  Spies  indicated  a  policy 
of  street  warfare,  much  the  same  as  that  detailed  by  an 
officer  of  the  United  States  army  as  published  in  the  San 
Francisco  Truth,  and  republished  in  the  Alarm.  (People's 
Exhibit  48;  I  A.,  172.)  Among  other  things  Mr.  Spies  told 
him  that  the  socialists  in  Chicago  had  a  body  of  very  tall 
and  very  strong  men,  ivho  could  throw  Jive-pound  bombs 
I  JO  paces  with  t/ieir  hands.  He  says  distinctly  he  tried  to 
find  out  from  Spies  when  the  social  revolution  was  to  be 
inaugurated,  but  that  Spies  did  not  fix  any  date,  either 
precisely  or  approximately.  He  says,  however,  that  at 
another  interview  Spies  said  it  would  probably  occur  in 
the  first  conflict  with  the  police  and  militia;  that  if  there 
should  be  an  universal  strike  for  the  eight-hour  system 
there  would  probably  be  a  conflict  brought  about.  He 
further  states  that  Spies  showed  him  an  empty  shell  of  a 
proposed  dynamite  bomb,  which,  by  Spies'  permission, 
he  carried  away  and  gave  to  Mr.  M.  E.  Stone,  editor  of 
the  Chicago  Dail}'  News,  who  retained  the  same,  and 
that  shell  was  introduced  in  evidence  in   the  case.     He 


195 

further  says  that  Spies  spoke  of  there  being  a  large  num- 
ber of  men  organized  and  ready  for  service  in  the  event 
of  a  revolution,  and  that  he  got  the  idea,  from  what  Spies 
said,  that  they  had  a  number  of  thousand  bombs  ready 
for  use.  The  witness  had  advised  Mr.  Spies,  previous  to 
his  interviews,  that  he  was  assigned  to  this  work  by  Mr. 
Stone,  editor  of  the  Daily  News. 

Mr.  Joseph  Gruenhut,  also  testified  in  behalf  of  the 
state,  and  examined  as  to  the  same  conversation,  says 
(A.,  109;  K,  59)  that  the  conversation  between  Wilkin- 
son and  Spies  was  carried  on  in  an  half  joking  manner, 
lasting  perhaps  a  quarter  of  an  hour,  while  they  were 
taking  their  supper;  and  he  saj's  distinctly  on  cross-exam- 
ination (A.,  109;  K,  66)  that  m  this  conversation  no  date 
■was  fixed  when  there  was  going  to  begin  trouble  in 
Chicago;  that  Spies'  conversation  was  zvholly  upon  gen- 
eral principles,  and  that  nothing  was  said  as  to  any  attack 
about  May  ist. 

Mr.  Spies'  version  of  these  conversations  with  Mr. 
Wilkinson  may  be  found  in  his  testimony  (A.,  304-306); 
he  says  it  was  a  general  discussion  of  the  possibilities  of 
street  warfare  under  modern  science  (A.,  306),  with  no 
suggestion  whatever  of  any  time  or  place  for  the  inaugura- 
tion of  the  conflict  with  the  constituted  authorities. 


(e.)    The  Eight-Hour  Agitation  Meeting  at  West 
I2TH  Street  Turner  Hall. 

James  K.  Magie  (A.,  23;  I,  309  et  seq.)  and  H.  E.  O. 
Heinemann  (A.,  30,31;  I,  380  et  seq.)  show  that  in 
October,  1885,  at  a  meeting  at  West  12th  street  Turner 
Hall,  the  intended  eight-hour  movement  was  under  dis- 
cussion.     Only    Spies    and    Fielden,    of  the    plaintiffs  in 


196 

error,  were  present.  Resolutions  were  adopted  which 
stated  that  the  probabilities  were  that  the  property-own- 
ing class  would  resist  any  attempt  of  the  laborers  to 
enforce  the  eight-hour  demand,  by  calling  to  aid  the  po- 
lice and  militia,  and  if  the  workingmen  were  determined 
on  carrying  their  point  they  would  have  to  arm  them- 
selves and  be  ready  to  enforce  their  demands  by  the  same 
means  that  the  property-owning  class  would  use.  The 
resolution  concluded  with  the  sentence:  "  Death  to  the 
'•  enemies  of  the  human  race — our  despoilers."  Mr. 
Heinemann  expressly  says  (A.,  31;  I,  385):  "  I  would 
"  not  be  certain  whether  the  resolutions  stated  the  time 
"  when  this  should  culminate;  the  ist  of  May  was  desig- 
"  nated  in  so  far  as  a  commencement  of  the  eight-hour 
«•  movement  was  fixed  for  that  date." 

There  were  about  500  people  present,  and  after  full 
discussion,  pro  and  con,  the  resolutions  were  adopted  by 
a  very  strong  vote  (A.,  24;  I.,  319,  320.) 

That  the  wage-workers  throughout  the  United  States 
fixed  upon  the  ist  of  May,  1886,  for  the  inauguration  of 
the  eight-hour  movement  as  early  as  two  years  before 
that  date,  is  historic  and  furthermore  appears  from  the 
record.  But  the  above  testimony  in  regard  to  the  resolu- 
tions passed  at  the  meeting  at  West  12th  street  Turner 
Hall,  and  that  of  Moulton  and  Wilkinson  above  consid- 
ered, was  used  by  the  state  as  a  basis  for  their  claim,  that 
the  plaintiffs  in  error  were  engaged  in  a  conspiracy  to 
inaugurate  the  social  revolution  on  May  ist. 

This  claim  is  too  absurd  to  deserve  serious  refutation. 
Perhaps  the  best  answer  to  it  is  the  reply  which  Spies  gave 
Wilkinson  when  he  asked  him  if  the  anarchists  and  social- 
ists were  going  to  make  a  revolution:  "  Revolutions  are 
"  not  made  by  individuals  or  conspirators,  but  are  simpl}' 
"  the  logic  of  events  resting  in  the  condition  of  things." 


197 


(  /.)     The  general  tendency  of  these  utterances. 

There  is  a  vast  amount  of  other  testimony  concerning 
speeches  and  conversations  attributed  to  the  various  ac- 
cused, which  was  admitted  in  every  instance  as  against 
all  the  plaintiffs  in  error,  over  their  objection  and  excep- 
tion, and  particularly  of  those  not  present  at  the  respective 
occasions.  The  worst  that  can  be  said  of  these  utter- 
ances is  that  they  were  full  of  predictions  of  an  impend- 
ing conflict  between  laborers  and  capitalists,  urging  the 
laboring  men  to  prepare  for  that  conflict  by  arming  them- 
selves, advising  them  to  buy  guns  and  revolvers,  and 
particularly  commending  to  them  as  a  weapon  for  such 
warfare  the  latest  product  of  science  in  the  development 
of  explosives,  namely,  dynamite.  But  a  careful  inspection 
of  all  these  speeches  will  show  that  none  of  them  ever 
counseled  an  initiation  of  a  conflict  by  the  working  people, 
nor  fixed  any  date,  nor  designated  any  place  for  the 
bringing  on  of  such  contest — the  position  of  the  speakers 
being  that  the  present  societary  relations  were  wrong; 
that  the  producing  classes  did  not  get  the  share  they  were 
entitled  to;  that  the  power  held  by  the  capitalists  was 
founded  upon  force;  that  the  capitatists  would  not,  in  all 
probability,  yield  peaceably  to  the  just  demands  of  the 
working  classes,  but  in  case  the  latter  should  insist  upon 
their  rights,  would  call  out  the  militia  and  police  force 
against  them,  and  that  they  should  be  prepared  to  meet, 
when  that  conflict  came,  force  with  force,  coupled  with 
the  suggestion,  at  times,  that  if  they  should  thoroughly 
prepare  themselves  for  the  conflict,  they  might  achieve  a 
bloodless  victory.  None  of  the  speeches  ever  referred 
directly  or  indirectly  to  the  meeting  of  the  night  of  May 
4,   1 886,  or  any   other  particular  occasion,  or    counseled 


any  act  of  violence,  or  suggested  the  use  of  explosives  of 
any  kind  at  that  meeting. 

Again,  we  ask,  what  has  this  testimony  to  do  with  the 
issue  before  the  jury?  What  proper  place  had  it  in  this 
record?  That  such  testimony  had  a  tendency  to  prejudice 
the  jury  against  plaintiffs  in  error,  or,  more  properly 
speaking,  to  intensify  the  prejudice  with  which  they  en- 
tered the  jury  box,  we  freely  admit,  and  for  this  very 
reason  claim  that  its  introduction  was  material  error. 


VI.     OTHER  ILLEGITIMATE  EVIDENCE. 

Dr.  Murphy  (A.,  152-157),  Dr.  Lee  (A.,  163,  164), 
and  Dr.  Baxier|  (A.,  162),  were  permitted  to  testify, 
at  great  length,  to  the  details  of  the  wounds  and  their 
medical  U-eat7nent  of  a  large  number  of  police  officers 
other  than  Degan,  supposed  to  have  been  injured 
or  killed  by  the  explosion  of  the  Haj'market  bomb, 
or  by  pistol-balls.  These  horrifying  details  poured 
into  the  ears  of  the  jury,  through  hours  of 
the  examination  of  these  witnesses,  were  calculated 
to  stir  their  prejudices  to  such  an  extent  as  perhaps 
to  absolutely  unsettle  the  judgment;  but  certainly  no  man 
can  claim  that  this  class  of  testimony  had  any  proper  place 
in  the  investigation  of  the  issue,  which  was  not  the  extent 
of  the  injuries  resulting  from  the  explosion  of  the  bomb, 
but  simplv  whether  the  plaintiffs  in  error  were  legally  re- 
sponsible for  the  explosion  of  that  bomb,  which  confess- 
edly resulted  in  the  death  of  Mathias  J.  Degan. 

Another  illustration  of  the  admission  of  improper  testi- 
mony occurred  in  the  examination  of  Fred.  P.  Rosback, 
for  the  State.  Upon  his  examination  the  following  took 
place  (A.,  84,  85;  J,  282,  283),  viz.: 


199 

"  Q.  What  is  3'our  business? 

"  A.  Machinist. 

"  Q.  Where  is  your  place  of  business? 

"  A.  224  East  Washington  street. 

"  Q.  Do  j-ou  know  Rudolph  Schnaubelt? 

"  A.  Yes,  sir. 

"  Q.  Did  he  work  for  you? 

"  A.  Yes,  sir. 

"  Q.  Do  you  remember  the  night  of   the  throwing  of 
the  bomb? 

"  A.  Yes. 
*  *  *  *  *  *  * 

"  Q.     Did  you  see  him  on  Tuesday? 
"  A.     Yes. 

"  Q.     On  Tuesday,  when  you  saw  him,  did  he  have  a 
beard  on? 
"A.     Yes. 

"  Q.     When  did  you  next  see  him? 
"  A.      I  next  saw  him  Wednesday   morning. 
"  Q.     At  what  hour? 
"  A.     He  came  to  work  at  7  o'clock? 
"  Q.     Did  he  have  a  beard  on  that  day? 

(Objected  to.) 
"  Mr.  Grinnell:    It  is  for  the  purpose  of  identification. 

(Objection   overruled;  exception.) 
"  Q.     Did  he  have  a  beard  on  on  Wednesda}'? 
"  A.     Yes. 

"  Q.      Did  you  see  him  Thursday? 
"  A.     Yes. 
"  Q.     Did  he  have  a  beard  on  then? 

(Objected  to;  objection  overruled,  and  exception.) 
"  A.     Thursday  morning  he  had  his   beard  shaved  off, 
"  Q.     Did  he  have  a  mustache  on? 
"  A.     He  had  a  mustache,  but  it  was  clipped  of}'." 


What  was  the  purpose  of  this  examination?  Was  it  for 
ihe  purpose  of  identification,  as  suggested  by  the  state's 
attorney?  How  was  that  purpose  aided  by  this  examina- 
tion? Is  it  not  obvious  that  this  evidence  served  not  at 
all  for  the  purpose  of  identification,  but  that  it  did  serve  to 
get  before  the  jury  the  fact  that  Mr.  Schnaubelt,  shortly 
after  the  bomb-throwing,  shaved  his  beard  and  clipped 
his  mustache,  thus  suggesting  disguise?  And  if  this  was 
the  sole  tendency  of  this  evidence,  and  the  natural  and  ob- 
vious tendency  thereof,  are  we  not  justified  in  charging 
that  such  was  the  purpose  of  its  offering,  despite  the  con- 
trary suggestion  by  the  state's  attorney,  on  the  familiar 
principle  that  every  man  is  presumed  to  intend  the  nat- 
ural consequences  of  his  action?  But  whether  this  result 
was  intended  or  not,  this  evidence  was  clearly  incompe- 
tent, upon  the  familiar  principle  that  no  evidence  of  the 
acts  of  alleged  conspirators  post  the  crime,  are  competent 
against  their  supposed  co-conspirators.  Schnaubelt  was 
not  on  trial.  The  alleged  change  in  his  appearance 
specially  inquired  of,  even  to  the  point  of  asking  a  leading 
question,  occurred,  if  at  all,  as  shown  by  the  above  tes- 
mony,  after  the  night  of  May  4.  It  was  grossly  improper 
to  allow  this  evidence,  and  the  testimony  could  not  but 
have  a  strong  tendency  to  prejudice  the  jury.  It  was  evi- 
dence that  might  have  been  competent  against  Schnau- 
belt upon  the  issue  raised  by  the  testimony  of  Gilmer,  had 
Schnaubelt  been  on  trial.  Its  introduction  in  his  absence 
cannot  be  excused. 

It  is  said  by  Mr.  Wharton  (Crim.  Ev.,  §  750,)  that  when 
a  suspected  person  attempt  to  escape  or  to  evade 
threatened  prosecution,  or  resorts  to  flight  or  acts  of  dis- 
guise, this  may  be  shown  as  tending  to  evidence  con- 
sciousness of  guilt;  but  in  §  699  of  the  same  work,  he 
says: 


"  When  the  common  enterprise  is  at  an  end,  whether 
-"  by  accomplishment  or  abandonment,  no  one  of  the  con- 
•"  spirators  is  permitted  by  any  subsequent  act  or  declara- 
-"  lion  of  his  own  to  affect  the  others.  Even  the  most 
-"solemn  admission  made  by  him  after  the  conspiracy  is 
"  at  an  end  is  not  evidence  against  accomplices.  Nor  can 
-"  the  flight  of  one  conspirator  after  such  time  be  put  in 
"  evidence  against  the  others." 

In  the  case  of  People  v.  Stanley,  47  Cal.,  112,  the  Su- 
preme court  of  California  used  the  following  language: 

"  It  is  well  settled  that  the  flight  of  a  person  suspected 
-"  of  a  crime  is  a  circumstance  to  be  weighed  by  the  jury, 
-"  as  tending  in  some  degree  to  prove  a  consciousness  of 
-"  guilt,  and  is  entitled  to  more  or  less  weight  according 
-"  to  the  circumstance  of  the  particular  case.  Such  evi- 
•*'  dence  is  received,  '  not  as  a  part  of  the  res  gestce,  of  the 
"  criminal  act  itself,  but  as  indicative  of  a  guilty  mind.' 
"  (Roscoe  on  Criminal  Evidence,  18.)  At  most,  it  is  but 
-"  a  circumstance  tending  to  establish  a  consciousness  of 
-"  guilt  in  the  person  fleeing;  and  it  would  be  extending 
""  the  principle  to  a  great  length  to  hold  that  the  flight  of 
^'  one  person  tends  to  establish  the  guilt  of  another  person. 
-"  We  have  been  referred  to  no  case  which  goes  to  that 
■"  extent."  In  that  case  there  was  a  reversal  upon  the 
sole  ground  that  evidence  was  admitted  of  the  flight  of 
an  alleged  co-conspirator. 

In  support  of  the  general  proposition  that  "  when  the 

-*'  common  purpose  is  at  an  end,  whether  by  accomplish- 

•"  ment  or  abandonment,  no  one  of  the  conspirators  is  per- 

■"  mitted  by  any  subsequent   act  or  declaration  of  his  own 

■■"  to  affect  the  others,"  we  cite,  without  special  comment: 

Snozuden  v.  State,  7  Baxter,  482. 

People  V.  Aleck,  61  Cal.,  137. 

State  V.  SohJc,  14  Nev.,  453. 


Commonwealth  v.  Thompson,  99  Mass.,  444- 

State  V.   West/all,  49  Iowa,  328. 

Strady  v.  State,  5  Caldwell,  300. 

State  V.  Fuller,  39  Vermont,  74. 

Hunter  \.    Commonwealth,^   Grattan,  641^ 

Hudson  V.    Commonwealth,   2    Duval,    531 

(Ky). 

Rueber  v.  State,  25  Ohio  State,  464. 
People  V.  Stevens,  47  Mich.,  411. 
Peo^/e  V.  Arnold,  46  Mich.,  68. 
Spencer  v.  State,  31  Tex.,  64. 
yl3e  V.  ^7a^e,  31  Texas,  416. 
Co7nmonwealth  v.  Ingraham,  7  Gray,  46. 
Ormsbee  v.  People,  53  New  York,»47  2. 
,  Morris  v.  5/fl/^,  50  Ohio,  439. 

67«/e  V.  Ariiold,  48  Iowa,  566. 
5^a/e  V.  Rawler,  65  N.  C,  334. 
Phillips  V.  5/«/f,  6  Tex.  Appeal,  314. 

We  cannot,  without  unduly  extending  the  limits  of  this- 
argument,  attempt  to  review  in  detail  all  of  the  testimony 
which  was  permitted  to  be  introduced  in  the  prosecution- 
of  this  cause  over  the  objection  of  plaintiffs  in  error,  that 
in  our  view  was  illegitimate  as  being  immaterial  and. 
irrelevant  to  the  issue  before  the  jury.  The  specifications 
of  this  class  of  testimony  which  we  have  above  given 
were  intended  to  bring  into  clear  relief  the  general  scope- 
of  the  inquiry  which  was  permitted  to  be  entered  upor> 
by  the  court,  and  to  show  how  far  from  the  real  issue  the 
case  was  permitted  to  drift. 


203 


OUR    POSITIONS    UPON    THE    EVIDENCE    ILLEGITI- 
MATELY  INTRODUCED. 

The  apparent  purpose  of  the  proofs  thus  specified  was 
to  establish  a  general  conspiracy  against  the  law;  a  plan 
to  bring  about  a  revolution  in  the  order  of  society — :a 
purpose  to  change  the  existing  social  condition,  and  to 
that  end,  if  necessary,  to  resort  to  force. 

There  was  no  pretense  that  that  testinnony  tended  to 
show  that  the  commission  of  the  particular  crime  charged 
in  the  indictment  was  ever  arranged  for  or  advised.  The 
claim  was  that  such  acts  of  violence  were  likely  to  fall 
out  if  an  attempt  should  be  made  at  any  time  to  accom- 
plish the  purposes  of  this  general  conspiracy  or  agree- 
ment. 


I.     There  is  no  Responsibility  for  the  Act  of  an 
Associate  in  Purpose,  but  not  in  Action. 

The  evidence  tends  to  show,  that  all  of  the  plaintiffs 
in  error  favored  the  idea  of  a  change  in  the  order 
of  society,  and  especially  of  the  abolition  of  the  wage 
system;  and  that  some  of  the  plaintiffs  advocated  the 
use  of  force,  if  this  should  become  necessary,  in  order 
to  bring  about  that  change.  The  most  which  all  that  evi- 
dence tends  to  show,  is  that  there  was  a  community  of 
purpose  or  desire  among  the  plaintiffs  in  error  in  regard 
to  these  principles.  But  the  state's  own  evidence  shows 
that  the  different  plaintiffs  in  error  worked  in  different 
directions,  under  different  plans,  with  different  means. 
And  it  is  a  well  established  principle,  that  if  a  body  of 
associates,  entertaining  a  common  purpose,  start  for  the 
attainment  of  that  result  by  different  processes,    acting  in- 


204 

dependently  of  each  other  in  their  attempts  to  reach  the 
common  end,  the  mere  community  of  purpose  or  desire 
does  not  make  the  parties  entertaining  it  responsible  for 
the  acts  of  their  associates  in  desire,  but  not  associates  in 
action.  In  other  words,  if  a  number  of  persons  start  out 
to  accomplish  a  certain  end,  but  afterwards  divide  their 
forces,  one  set  adopting  one  plan  to  reach  that  end,  with- 
out the  knowledge  or  concurrence  of  the  other  set,  such 
other  set  are  not  responsible  for  the  independent  plan  or 
conspiracy  of  the  supposed  actors. 

Our  claim  is  that  the  liability  of  an  accessory  to  the 
penalties  of  the  law  is  conditioned  upon  legal  proof  that 
the  accessory  advised,  abetted  or  encouraged  the  perpe- 
tration of  the  particular  crime  charged,  or  engaged  in 
so7ne  felony  which,  in  contemplation  of  the  law,  involved 
the  particular  crime  as  a  probable  result,  at  the  time  and 
under  the  ^circumstances  of  the  perpetration  of  the 
offense. 

The  law  is  well  settled  that  where  different  parties  are 
engaged  in  a  like  conspiracy,  but  as  to  the  particular  act 
done  are  proceeding  independently  and  without  concert, 
only  the  parties  to  the  act  can  be  held  responsible  for  it. 
In  other  words,  parties  cannot  be  held  criminally  liable 
because  of  sympathy  with  or  participation  in  a  general 
desire,  but  only  because  of  aiding,  abetting,  assisting  or 
encouraging  "  the  perpetration  of  the  crime." 

The  law  upon  this  subject  is  well  stated  in  2  Starkey 
on  Evidence,  Part  I,  Philadelphia  Ed.  1842,  *324,  as  fol- 
lows: 

"  Where  it  appeared  that  there  was  a  conspiracy  to 
"  raise  war  in  the  North  riding  of  Yorkshire,  and  that 
"  there  was  at  the  same  time  a  conspiracy  in  the  West 
"  riding,  in  which  latter  one  it  took  place,  and  there  was 
"  no  evidence  to  show  that  those  in   the    one  riding  knew 


"  of  the  conspiracy  in  the  other,  it  was  held  that  the 
"  former  could  not  be  implicated  in  the  acts  of  the  latter, 
"  although  they  concurred  at  the  same  time  to  the  same 
"  object." 

We  think  it  desirable,  in  order  to  show  the  full  scope 
of  this  ruling,  to  refer  to  the  original  text  of  Kellyng's 
Crown  Cases  on  the  Law  of  High  Treason,  *24,  where 
the  action  of  the  justices  upon  this  case  is  stated  as  fol- 
lows: 

"  In  the  next  place,  we  being  informed  that  there  was- 
"  a  conspiracy  to  raise  a  war  in  the  North  riding  of 
"  Yorkshire,  as  well  as  the  West  riding,  where  some  did 
"  actually  appear  in  arms,  yet  it  could  not  be  proved  that 
"  those  in  the  North  riding  did  agree  to  the  rising  that 
"  there  was  in  the  West  riding,  or  that  they  knew  any- 
"  thing  about  it,  and  so  would  not  be  within  the  first  reso- 
'•  lution,"  namely,  would  not  be  responsible  for  the  acts  of 
the  conspirators  in  the  West  riding.  To  apply  the  doc- 
trine of  this  case  to  the  case  at  bar,  even  if  it  should  be 
conceded  that  upon  the  part  of  all  the  plaintiffs  in  error 
there  was  a  general  unity  of  design  to  bring  about  a  revo- 
lution in  the  order  of  society;  yet,  if  certain  of  the  plain- 
tiffs in  error,  of  their  own  motion,  and  without  any  con- 
cert of  action  or  consultation  with  the  other  plaintiffs  in 
error,  proceeded  to  do  an  act  of  their  own  volition,  and 
upon  their  own  responsibility,  which  was  not  at  the  time 
within  the  contemplation  or  expectation  of  the  other 
plaintiffs  in  error,  such  other  plaintiffs  in  error  would  not 
be  implicated  in  the  consequences  of  such  independent 
act. 

Another  case  which  recognizes  the  same  doctrine  is  that 
of  State  V.  Trice,  88  North  Carolina,  627.  In  that  case, 
CufT  Trice  was  indicted,  together  with  Charles  Trice  and 
Mack  Cross,  for  conspiracy  to  commit  rape,  and   for  the 


2o6 

preparation  of  certain  powders  to  be  used  in  that  connec- 
tion, and  for  conspiracy  and  agreement  to  give  such  pow- 
ders to  some  person  to  the  jurymen  unknown.  The 
evidence  tended  to  show  that  Cuff  Trice  did  pretend  to 
be  a  manufacturer  and  vendor  of  powders  calculated  to 
overcome  the  resistance  of  women,  and  that  he  gave  some 
of  these  powders  to  the  co-defendants,  telling  them  at  the 
same  time  that  by  using  the  powders  they  could  overcome 
any  woman.  There  was  a  verdict  and  judgment  against 
the  defendants,  which  was  set  aside  by  the  court  on  the 
ground,  amongst  others,  that  the  evidence  did  not  connect 
the  defendant  Cuff  Trice  with  the  particular  assault  made 
by  Charles  Trice  upon  Fidelia  TTpchurch  or  Effie  Up- 
church,  both  of  whom  it  was  charged  Charles  Trice  at- 
tempted to  rape.  The  position  taken  by  the  court  was, 
in  effect,  that  the  mere  selling  of  the  powder  in  question, 
even  when  accompanied  by  a  statement  of  its  alleged 
purpose,  w^ould  not  make  the  vendor  a  party  to  a  crime 
subsequently  attempted  to  be  committed  by  the  vendee, 
nor  bring  the  vendor  in  as  a  conspirator  with  the  vendee 
in  an  assault  made  by  the  vendee  upon  some  person  or 
persons  unknown  to  the  vendor,  and  without  the  vendor's 
direct  concurrence  and  advice.  [This  case,  by  the  way, 
fits  exactly  the  facts,  upon  which  alone  Louis  Lingg  was 
attempted  to  be  made  responsible  for  the  Haymarket 
tragedy.  Unless  it  could  be  shown  that  he  gave  a  bomb 
of  his  manufacture  to  a  person  for  the  purpose  of  throw- 
ing it  at  the  particular  time  and  place — in  other  words, 
unless  he  advised  and  aided  '■'■the  perpetration  of  the 
crime"  he  should  have  been  acquitted  under  the  doctrine 
laid  down  in  this  case.] 


31.     Evidence  of    Distinct    Substantive    Offenses 
IS  Inadmissible. 

The  proof  offered  and  received,  under  the  theory 
-adopted  and  declared  by  the  trial  court,  was  proof  tending 
to  establish  a  conspiracy,  not  for  the  object  of  using 
violence  at  the  Haymarket,  but  one  unconnected  with 
that  crime.  Conspiracy,  under  our  law  is  a  separate 
and  independent  crime.  The  effort  made  by  the  State 
■was  therefore  in  effect  an  effort  to  convict  the  plain- 
tiffs in  error  of  the  crime  charged  under  this  indictment 
by  offering  proof  that  the}-^  were  parties  to  a  separate 
•crime  which  did  not  specially  relate  to  or  contemplate  the 
particular  crime  charged.  As  applicable  to  such  an  eflbrt, 
■we  call  attention  to  the  statement  of  the  rule,  as  given  in 
Wharton's  Criminal  Evidence,  §30,  where  it  is  said: 

"  A  defendant  ought  not  to  be  convicted  of  the  offense 
^'charged,  simply  because  he  has  been  guiltj'  of  another 
"  offense.  Hence,  when  offered  simply  for  the  purpose  of 
"  proving  his  commission  of  the  offense  on  trial,  evidence 
^'of  his  participation,  either  in  act  or  design,  in  commis- 
"  sion  or  in  preparation,  in  other  independent  crimes,  can- 
-"  not  be  received." 

This  is  laid  down  as  the  general  rule. 

In  SchaJJ')ier  v.  The  Commoyiwealth,  72  Penn.  State,  60, 
the  law  is  thus  stated  b}'  Agnew,  Justice,  delivering  the 
opinion  of  the  court: 

"  It  is  a  general  rule  that  a  distinct  crime,  unconnected 
■"  with  that  laid  in  the  indictment,  cannot  be  given  in  evi- 
"  dence  against  a  prisoner.  It  is  not  proper  to  raise  a 
•"  presumption  of  guilt  on  the  ground  that,  having  com- 
"  mitted  one  crime,  the  depravity  it  exhibits  makes  it 
^'  likely  he  would  commit  another.     Logically,  the  com- 


•    208 

"  mission  of  an  independent  offense  is  not  proof  in  itself  of 
"  the  commission  of  another  crime.  Yet,  it  cannot  be  said  to 
"  be  without  influence  on  the  mind,  for  certainly,  if  one  be 
"  shown  to  be  guilty  of  another  crime,  equally  heinous,  it 
"  will  prompt  a  more  ready  belief  that  he  might  have  com- 
"  mitted  the  one  with  which  he  is  charged;  it  therefore  pre- 
"  disposes  the  mind  of  the  juror  to  believe  the  prisoner 
"  guilty.  To  make  one  criminal  act  evidence  of  another,^ 
"  the  connection  between  them  must  have  existed  in  the 
"  mind  of  the  actor,  linking  them  together  for  some  purpose- 
"he  intended  to  accomplish;  or  it  must  be  necessary  to 
"  identify  the  person  of  the  actor  by  a  connection  which 
"  shows  that  he  who  committed  the  one  must  have  done- 
"  the  other.  Without  this  obvious  connection,  it  is  not 
"  only  unjust  to  the  prisoner  to  compel  him  to  acquit 
"  himself  of  two  offenses  instead  of  one,  but  it  is  detri- 
"  mental  to  justice  to  burthen  a  trial  with  multiplied  issues 
"  that  tend  to  confuse  and  mislead  the  jury." 

This  rule  has  been  very  strongly  laid  down  by  thi& 
court.  It  is  said  in  Kribs  v.  The  People,  S2  111.,  424,  as 
follows  (p.  426) : 

"  On  the  trial  the  court  allowed  the  people,  over  the 
"objection  of  the  defendant  (who  was  indicted  for  em- 
"  bezzlement),  to  prove  that  the  defendant  had  collected  or 
"  received  money  belonging  to  other  parties,  and  on  several! 
"  occasions,  which  he  had  fraudulently  converted  to  his- 
"  own  use.  This  was  error.  The  evidence  should  have 
"  been  confined  to  the  charge  for  which  the  defendant  was; 
"  indicted.  On  the  trial  of  this  indictment  the  law  did  not 
"  require  him  to  come  prepared  to  meet  other  charges, 
"  nor  does  it  follow,  because  he  may  have  been  guilty  of 
"  other  like  offenses,  that  he  was  guilty  of  the  offense 
"  charged  in  the  indictment." 

"  The  evidence  should  have   been   confined   strictly  to> 


2  op 

"  the  offense  charged  in  the  indictment.  This  was  not, 
"  however,  done,  but  improper  testimony  allowed  to  go 
•'  to  the  jur.y,  which  could  not  fail  to  prejudice  the  rights 
"  of  the  defendant." 

For  the  error  above  indicated  alone  the  case  was  re- 
versed. 

To  the  same  effect,  we  cite  Walls  v.  T/ie  State,  5  W. 
Va.,  532. 

So  in  JJeviiie  v.    The  People,   100  111.,  290,  it  is  said 

(P-  293): 

"  In  view  of  *  *  the  consideration  that  the  life  of  the 
''  accused  was  involved  in  the  issue,  it  became  highly  im- 
"  portant  to  him,  as  well  as  essential  to  the  due  adminis- 
"  tration  of  justice  in  the  prosecution  of  the  case,  that 
"  the  state  should  be  held  to  at  least  a  substantial, 
"  if  not  a  strict  observance  of  the  well-established  rules 
"  governing  the  production  of  testimony,  in  its  efforts  to 
"  establish  the  charge  against  him.  The  trial  should  have 
"  been  conducted  with  the  utmost  fairness,  and  no  matter 
"  or  thing  should  have  been  admitted  in  evidence,  against 
"  the  objections  of  the  accused,  which  did  not  prove  or 
"  tend  to  prove  the  issue,  more  especially  if  the  evidence, 
"  when  admitted,  would  have  had  an  improper  influence 
"  upon  the  minds  of  the  jury,  or  place  the  accused  at  a 
"  disadvantage  before  them." 

The  same  rule  was  applied  in  Sutton  v.  Johnson,  62 
111.,  209. 

Under  this  head,  we  desire  to  quote  further  from  i 
Phillips  on  Evidence,  765,  766   (p.  644,  5th  Am.  Ed.): 

"  In  criminal  cases,  it  is  purely  the  duty  of  courts  of 
"  justice  to  prevent  evidence  being  given  which  would 
"  support  a  charge  against  prisoner  of  which  he  was  not 
"  previously  apprised  under  the  pretext  of  it  supporting 
*'  some  presumption  of  the  offense  which  is  the  subject  of 


2IO 

"  the  indictment.  In  treason,  therefore,  no  evidence  is  to 
"  be  admitted  of  any  overt  act  that  is  not  expressly  laid 
"  in  the  indictment.  This  was  the  rule  at  common  law. 
"  It  is  again  prescribed  and  enforced  by  the  statute  of 
"  William  III,  which  contains  an  express  provision  to  that 
"  effect  in  consequence  of  some  encroachments  that  had 
"  been  made  in  several  state  prosecutions.  The  meaning 
"  of  the  rule  is  not  that  the  whole  detail  of  facts  should 
"  be  set  forth,  but  that  no  overt  act,  amounting  to  a 
"  distinct,  independent  charge,  though  falling  under  the 
"  same  head  of  treason,  shall  be  given  in  evidence,  unless 
"  it  be  expressly  laid  in  the  indictment;  but  still,  not  con- 
"  duced  to  the  proof  of  any  of  the  overt  acts  that  are 
"  made,  it  may  be  admitted  as  evidence  of  such  overt 
"  acts." 

While  Roscoe,  in  his  work  upon  criminal  evidence,  yth 
Am.  Ed.,  §  90,  p.  90,  thus  states  the  rule: 

"  It  maybe  laid  down,  as  a  general  rule,  that  in  criminal 
"  as  in  civil  cases  the  evidence  shall  be  confined  to  the 
"  point  in  issue.  In  criminal  proceedings  it  has  been 
"  observed  that  the  necessity  is  stronger,  if  possible,  than 
"  in  civil  cases  of  strictly  enforcing  this  rule;  for  where  a 
"  prisoner  is  charged  with  an  offense,  it  is  of  the  utmost 
"  importance  to  him  that  the  facts  laid  before  the  jur^- 
"  shall  consist  exclusively  of  the  transaction  which  forms 
"  the  subject  of  the  indictment  and  matters  relating 
"  thereto,  which  alone  he  could  be  expected  to  come  pre- 
"  pared  to  answer." 

In  Kiiic/iillozv  v.  The  Stale.  5  Humph.,  9,  the  court  say 
(p.  12): 

"  It  is  well  settled  that  no  proof  of  the  admission  of  one 
"  distinct  substantive  oftense  shall  be  received  upon  a  trial 
"  for  the  commission  of  another;  a  fortiori,  shall  not  state- 
"  ments  of  an  intention  to  commit  it;  the  only  tendency  of 


*'  such  testimony  necessarily  is  to  prejudice  the  minds  of 
"  of  a  jur}-,  as  it  can  by  no  possibility  establish  or  eluci- 
*'  date  the  crime  charged." 

The  same  court,  in  3  Coldwell's  Reports,  362,  Wiley  \. 
The  Slate,  uses  the  following  language  (p.  372) :  "  The 
"  general  rule  is  that  nothing  shall  be  given  in  evidence 
"  which  does  not  directly  tend  to  the  proof  or  disproof 
"  of  the  matter  in  issue;  and  evidence  of  a  distinct  sub- 
"  stantive  offense  cannot  be  admitted  in  support  of  an- 
"  other  offense." 

We  think  we  may  here  pause  for  a  moment  to  apply 
the  rule  thus  well  expressed  to  the  case  at  bar,  and  the 
improper  evidence  adverted  to.  Here  is  a  vast  amount 
of  testimony  of  speeches,  public  utterances  and  publica- 
tions tending  to  show  the  expression  of  an  intention  or 
purpose  on  the  part  of  some  of  the  plaintiffs  in  error  to 
bring  about  a  change  in  the  order  of  society,  and,  if  needs 
be  to  the  accomplishment  of  that  end,  to  resort  to  force. 
How  can  these  statements  of  their  intent  to  engage  in  this 
enterprise,  which  may,  for  the  sake  of  the  argument,  be 
conceded  to  be  criminal,  if  purposed  to  be  accomplished 
by  the  use  of  force,  be  competent  upon  an  inquiry  as  to 
whether  or  not  these  particular  parties  are  responsible 
for  the  commission  of  a  -particular  offense  at  the  partictilar 
time  and  place,  where  all  the  evidence  shows  there  was 
no  intent  or  design  on  the  part  of  any  of  them  to  then  or 
there  attempt  to  carry  out  their  supposed  general  plan  or 
illegal  design,  but  where  the  crime  charged  is  com- 
mitted by  some  unknown  party,  not  shown  to  have  been 
acting  under  their  advice,  direction  or  encouragement  in 
the  perpetration  of  the  crime.  Take,  for  an  illustration, 
the  testimony  of  detective  Johnson,  above  quoted,  that  at 
a  meeting  of  the  American  group,  at  which  an  outrage 
committed  by  one  Wright  upon  his  servant,  a  young  girl, 


was  under  discussion.  Spies  said  that  this  was  a  fine 
opportunity  for  one  of  our  young'men  to  shoot  Wright; 
or  the  testimony  of  other  detectives,  that  on  the  night  of 
the  board  of  trade  demonstration  Parsons  said,  the  next 
time  they  would  be  prepared  with  dynamite,  and  many 
such  alleged  expressions  of  an  intention  to  do  unlawful 
acts  in  the  future.  Can  we  not  say,  adopting  the  lan- 
guage of  the  Supreme  court  of  Tennessee  just  quoted, 
"  the  only  tendency  of  such  testimony  necessarily  is  to 
"  prejudice  the  minds  of  the  jury,  as  it  can  by  no  possibil- 
"  ity  establish  or  elucidate  the  crime  charged?" 

III.  A  PRIMA  FACIE  Conspiracy  must  be  estab- 
lished BEFORE  the  AcTS  AND  DECLARATIONS  OF  AN 
ALLEGED  Co-CONSPIRATOR  CAN  BE  EVIDENCE  AGAINST 
ANOTHER. 

In  the  case  of  the  State  v.  George,  7  Ired.,  321,  where 
acts  and  declarations  of  a  party  other  than  the  defendant 
were  allowed  to  be  introduced  against  him,  upon  the 
statement  made  by  the  prosecutor  that  he  intended  to  in- 
troduce witnesses  to  prove  a  conspiracy  between  the  pris- 
oner and  such  third  person,  a  reversal  was  ordered  upon 
this  ground.  Separate  but  concurring  opinions  were 
submitted  by  diflerent  members  of  the  court.  We  quote, 
as,  perhaps,  one  of  the  best  expositions  of  the  law  upon 
this  point,  from  the  opinion  of  Ruffin,  Chief  Justice,  com- 
mencing at  page  328  of  the  report: 

"  I  think  there  ought  to  be  a  venire  de  novo  upon  the 
"  ground,  simply,  that  the  acts  and  declarations  of  the 
"  woman,  which  were  given  in  evidence,  are  not  of  such 
«  a  nature  as  can  affect  the  prisoner.  To  make  the  acts 
"  and  declarations  of  one  prisoner  those  of  another,  or  to 
"  allow  them  to  operate  against  another,  //  tmist  appear 


213 

*'  that  there  was  a  common  interest  or  purpose  between 
"  them ;  as  applied  to  the  case  before  us,  that  there  was 
"  a  conspiracy  to  murder  the  deceased   formed   between 

his  wife  and  the  prisoner. 

In  further  support  of  this  proposition  we  cite  Roscoe's 
Criminal  Evidence  (7  Am.  Ed.,  1874,  §  4i7»  P-  4^6)- 
The  learned  author  there  speaks  as  follows:  "  Supposing 
"  that  the  existence  of  a  conspiracy  may  in  the  first  in- 
■"  stance  be  proved,  without  showing  the  participation  or 
"  knowledge  of  the  defendants,  //  is  still  a  question  whether 
'■'■the  declarations  of  some  of  the  -persons  engaged  in  t/ie 
■^'■conspiracy  may  be  given  in  evidence  against  others,  in 
"  order  to  prove  its  existence;  and  upon  principle  such 
"  evidence  appears  to  be  inadmissible." 

Mr.  Roscoe  then  further  says  (same  Ed.,  p.  417,  §  418) 
as  follows:  "After  the  existence  of  a  conspiracy  is  estab- 
"  lished  and  the  particular  defendants  have  been  proved  to 
"  have  been  parties  to  it,  the  acts  of  other  conspirators 
■"  may  in  all  cases  be  given  in  evidence  against  them,  if 
"  done  in  furtherance  of  the  common  object  of  the  con- 
"  spiracy,  as  also  may  letters  written  and  declarations 
"  made  by  other  conspirators,  if  they  are  part  of  the  res 
"  gestce  of  the  conspiracy  and  no  mere  admissions." 

See  further  on  this  point,  i  Greenleaf,  Evid.,  §  m- 

That  the  erroneous  introduction  of  evidence  is  not 
cured  by  its  subsequent  exclusion  was  decided  in  Howe 
V.  Rosine,  87   III,  105. 

IV.  Acts  and  Declarations  of  an  alleged  Co- 
conspirator, TO  BE  Evidence  against  another,  must 
BE  in  the  Prosecution  of  the  Criminal  Conspiracy. 

In  People  v.  Stanley,  47  Cal.,  113,  the  court  used  the 
following  language  (p.  118): 

"  The  rule  is  well  settled  that  the  acts  of  an  accomplice 


214 

"  are  not  evidence  against  the  accused,  unless  they  con- 
"  stitute  part  of  the  res  gestcp,  and  occur  during  the  pend- 
"  ency  of  the  criminal  enterprise,  and  are  in  furtherance- 
"  of  its  objects." 

In  State  v.  George,  7  Ired.,  321,  the  court  say: 

"  Before  the  acts  and  declarations  of  one  of  the  conspira- 
"  tors  can  be  received  against  another,  it  must  be  shown 
"  that  they  were  acts  done  and  declarations  uttered  in 
"  furtherance  of  the  common  design,  or  in  execution  of 
"  the  conspiracy.  They  must  be  acts  and  declarations  of 
"  the  one  that  were  authorized  b\'  the  other,  or  such 
"  as  became  necessary  in  the  prosecution  of  the  I'oint 
"  business  or  criminal  conspiracy." 

In  Rex  V.  Hardy,  25th  State  Trials,  i,  the  majority  of 
the  judges  held  that  a  letter  purported  to  be  written  from 
one  alleged  conspirator  to  another  was  not  admissible  in 
evidence  save  as  against  the  party  writing  it,  using  the 
following  language:  "  A  bare  relation  of  facts  b}-  ar^ 
"  alleged  conspirator  to  a  stranger  was  merely  an  admis- 
"  sion  which  might  affect  himself,  but  which  could  not 
"  affect  a  co-conspirator,  since  it  was  not  an  act  done  in 
"  the  prosecution  of  that  conspiracy."  This  rule  is  ap- 
proved by  Mr.  Starkie  in  his  valuable  work  on  evidence, 
2d  ed.,  vol.  2,  page  326. 

Concerning  the  propriety  of  this  rule  there  can  be  nc 
question  or  doubt  whatever.  In  the  light  of  this  rule,  how 
stands  the  action  of  the  court  in  allowing  the  introduction 
into  the  record  of  bombs,  tin  cans  filled  with  explosive 
material,  and  other  materials  of  that  sort,  found  long  after 
the  Haymarket  meeting?  There  is  no  evidence  by  whoni 
these  instruments  were  manufactured,  and  it  cannot  be 
presumed  that  they  were  manufactured  by  some  parties 
to  a  conspiracy  in  which  the  plaintiffs  in  error  were  im- 
plicated, and  had  been   manufactured  for  use  in  carrying 


215 

out  the  purposes  of  that  conspiracy.  Besides,  they  were 
found  weeks  after  the  4th  of  May,  and  for  all  that 
appears  in  the  record,  such  manufacture  may  have  been 
after  the  occurrences  of  the  4th  of  May.  Can  it  be  said, 
that  this  was  evidence  of  "  acts  of  accomplices,"  and  can 
it  be  claimed  that  the  manufacture  and  secretion  of  the 
articles  occurred  "during  the  pendency  of  a  criminal  en- 
"  terprise,  and  in  furtherance  of  its  objects?  " 

How,  in  the  light  of  this  rule,  stands  the  introduction 
of  evidence  against  all  flaintiffs  in  error  of  the  testimonj' 
as  to  Mr.  Spies'  conduct  and  utterances  at  Grand  Rapids, 
or  as  to  his  conversations  with  the  reporter  Wilkinson  in 
January,  1886?  A  declaration  made  by  Spies,  more  than 
a  year  before  the  Haymarket  meeting,  outside  of  this 
state,  or  a  private  conversation  with  a  reporter  at  the 
dinner  table,  months  before  the  4th  of  May,  and  in  either 
instance  merely  narrative  of  what  had  or  would  be  done, 
certainly  constitute  no  part  of  the  res  gestae,  and  were 
not  in  furtherance  of  the  objects  of  the  alleged  criminal 
enterprise.  Is  not  such  talk  as  that  to  Wilkinson,  who 
was  at  the  time  engaged  in  securing  the  material  for  an 
article  in  the  News  of  Chicago,  the  very  thing  to  frustrate 
any  criminal  design,  if  such  an  one  had  existed? 

A  further  illustration  of  the  disregard  of  the  above  rule, 
is  the  evidence  of  Rosback  as  to  the  change  in  Schnau- 
belt's  appearance  made  by  the  shaving  of  his  beard  two 
days  after  the  Haymarket  meeting.  Was  this  the  act  of 
an  accomplice  "during  the  pendency  of  the  criminal  en- 
terprise," was  it  part  of  the  res  gestae,  was  it  in  further- 
ance of  the  objects  of  the  alleged  criminal  enterprise? 

Or  the  admission  of  evidence,  with  which  the  record 
abounds,  as  to  the  utterances  and  writings  of  third  par- 
ties, not  attempted  by  the  evidence  to  be  connected  in  any 
manner  with  the  alleged   conspiracy?     For  example,  the 


2l6 

introduction  in  evidence  of  the  platform  of  the  Interna- 
tional Workingpeople's  Association;  or  of  the  translation 
of  Herr  Most's  book?  Under  the  law,  as  above  declared, 
all  this  testimony  was  clearly  incompetent,  especially  in 
the  manner  in  which  it  wiis  permitted  to  come  in  by  the 
court,  to  wit,  as  against  all  the  plaintiffs  in  error. 

The  errors  of  the  court  in  the  rulings  in  reference  to 
the  admissibility  of  the  evidence  were  the  more  flagrant 
in  this  case,  in  our  judgment,  in  view  of  the  fact  that 
upon  an  application  formally  made  to  the  court,  a  sep- 
arate trial  asked  for  on  behalf  of  four  of  the  plaintiffs  in 
error,  in  the  first  instance,  namely,  Spies,  Schwab,  Fielden 
and  Neebe,  and  a  like  application  on  behalf  of  Parsons 
when  he  came  into  court  and  presented  himself  at  the  bar 
for  trial,  were  denied.  The  motion  for  separate  trial  first 
interposed  was  supported  by  affidavits,  and  was  substan- 
tially as  set  forth  in  pages  4  and  5  of  Vol.  i  of  the  ab- 
stract. The  grounds  for  the  application  for  a  separate 
trial  were: 

First.  That  the  testimony  against  them  would  be 
materially  different  from  that  against  the  other  defendants 
with  whom  they  were  jointly  indicted. 

Second.  Testimony  which  might  be  competent  against 
their  co-defendants  might  be  incompetent  and  prejudicial 
as  to  them. 

Third.  That  they  were  advised  that  evidence  of  an 
alleged  conspiracy  would  be  introduced,  with  which  said 
petitioners  were  not  connected. 

Fourth.  That  their  defense  would  be  imperiled  by 
such  testimony  because  of  its  length. 

Fifth.  That  they  were  advised  that  illegitimate  evi- 
dence would  be  submitted  to  the  jury  with  regard  to  an 
alleged  conspiracy,  which  might  be  competent  as  against 
their  co-defendants. 


217 

Sixth.  That  they  did  not  believe  that  they  could  have 
a  fair  and   impartial  trial  jointly  with  their  co-defendants. 

The  affidavit  of  Spies,  Fielden,  Schwab  and  Neebe 
showed  upon  information  that  upon  the  trial  the  prosecu- 
tion intended  to  introduce  evidence  to  show  that  some  of 
the  defendants  participated  in  a  meeting  held  May  2d, 
and  in  a  meeting  held  May  3d,  in  which  it  was  agreed 
that  violence  might  or  would  be  used  thereafter,  and  that 
it  would  be  claimed  that  Degan's  death  was  caused  bj' 
such  conspiracy;  that  affiants  had  been  furnished  with  a 
list  of  over  a  hundred  witnesses,  from  which  it  was  appre- 
hended that  the  trial  would  be  very  protracted;  that  if 
the  great  mass  of  testimony  was  brought  in,  it  would  be 
impossible  for  the  jury  to  intelligently  keep  the  testimony, 
as  applicable  to  them,  separate  from  that  which  might  be 
applicable  to  their  co-defendants;  and  that  by  a  separate 
trial  alone  could  they  be  sure  of  securing  an  impartial 
trial.  To  this  was  appended  the  affidavit  of  counsel  for 
the  plaintiffs  in  error,  that  they  believed  the  statements  of 
the  foregoing  affidavit  to  be  true. 

This  motion  for  a  separate  trial  was  overruled,  to  which 
the  plaintiffs  exxepted.  It  seems  to  us  that  it  cannot  be 
necessary  to  argue  at  any  great  length  that  the  plaintiffs 
in  error  who  joined  in  this  application  were  entitled  to 
have  the  same  granted,  and  that  the  denial  to  grant  them 
was  error. 

It  is  true  that  the  matter  of  a  separate  trial,  while  secured 
in  many  states  by  legislation  as  a  right  to  a  prisoner  in 
pursuance  of  what  is  believed  to  be  an  enlightened  and 
humane  policy,  is  declared,  in  this  state,  to  be  a  matter  of 
■discretion.  But  here,  as  alwaj'S,  the  discretion  means  not 
an  arbitrary  choice  b}'  the  judge,  but  the  exercise  of  a 
sound,  and,  under  the  circumstances,  fair  judgment  upon 
the  application  made,  and  the  case  as  presented. 


2l8 

In  the  case  of  White  v.  The  People,  8i  111.,  333,  the 
court,  in  reversing  the  judgment,  remanded  the  cause  with 
directions  to  give  the  parties  charged  separate  trials,  using^ 
this  language:  "This  is  a  case  wherein  it  is  eminently  fit 
"  that  these  plaintiffs  in  error  should  have  separate  trials." 

The  rule  is  laid  down  in  Wharton's  Criminal  Proceed- 
ings and  Practice,  8th  Ed.,  Sec.  302,  that  where  oftenses- 
are  necessarily  several,  there  can  be  no  joinder,  and 
among  cases  illustrating  the  te.xt,  he  cites: 

"If  A  and  B  are  jointly  indicted  and  tried  for  gaming,. 
"  and  the  evidence  shows  A  and  others  played  at  one  time 
"when  B  was  not  present,  and  that  B  and  others  played 
"at  a  time  when  A  was  not  present,  no  conviction  can  be 
"had  against  them.  If  also  tlie  offense  charged  does  not 
"fully  arise  through  the  joint  act  of  all  the  defendants^ 
"but  from  some  personal  or  particular  act  or  omission  of 
"  each  defendant,  the  indictment  must  charge  them  sev^. 
"  erally  and  not  jointly." 

To  the  same  effect  we  cite:  People  v.  Vermilyea^ 
7  Cowan,  *io8. 

Certainly  much  of  the  testimony  in  this  record,  which 
was  introduced  as  against  all  of  the  plaintiffs  in  error,, 
cannot  be  reasonably  claimed  to  be  relevant  or  competent 
as  against  certain  of  the  plaintiffs  in  error.  Take  for  in- 
stance the  testimony  introduced  by  the  state  in  reference 
to  the  Emma  street  meeting,  so-called,  and  the  Mondaj^ 
night  meeting  conspiracy,  so-called,  at  which  Fischer  and 
Engel  are  shown  to  have  been  present,  but  none  of  the 
other  parties;  and  where  a  distinct  line  of  policy  or  action' 
was  agreed  upon  to  which  none  other  of  the  plaintiffs  ir^ 
error  are  shown  ever  to  have  given  their  assent.  Whether 
or  not  this  testimony  was  relevant  to  the  issue  before  the- 
jury,  and  therefore  admissible  even  as  against  Fischer  and 
Engel,  certainl}'  it  was  not  competent  as  against  the  other 


219 

plaintiffs  in  error.  It  was  testimony  calculated  to  prejudice 
the  jury,  and  under  all  the  circumstances  calculated  to 
prejudice  their  cause  seriously.  It  seems  to  us  there  can 
be  no  doubt  whatever  that  the  case  was  one  where  sepa- 
rate trials  should  have  been  ordered  upon  the  application 
presented  to  the  court,  and  that  there  was  error  in  the 
action  of  the  court  in  this  respect. 


THE  COURT  ERRED  IN  HIS  RULING  UPON  THE 
MOTION,  AT  THE  CLOSE  OF  THE  STATE'S  CASE, 
FOR  AN  INSTRUCTION  TO  THE  JURY  TO  FIND 
OSCAR  NEEBE  AND  OTHER  OF  THE  PLAINTIFFS 
IN  ERROR  NOT  GUILTY. 

I.    THE  MOTION  IN  BEHALF  OF  OSCAR  NEEBE. 

At  the  time  this  motion  was  submitted,  the  only  evi- 
dence in  the  record  against  Oscar  Neebe  tended  to  estab- 
lish these  and  no  other  facts: 

(i.)  That  Neebe  was  an  acquaintance  of  certain 
other  of  the  plaintiffs  in  error,  and  was  met  by  the  wit- 
ness Gruenhut  on  different  occasions  at  the  office  of  the 
Arbeiter  Zeitung,  when  there  was  under  discussion  the 
organization  of  certain  unorganized  trades  for  the  eight- 
hour  movement  in  the  city  of  Chicago. 

(2.)  The  testimony  of  Franz  Hein  (A.,  71,  72),  that 
on  the  night  of  May  3,  1886,  Neebe  came  into  his  saloon 
between  9  and  10  o'clock,  showed  him  a  copy  of  the 
Revenge  circular,  and  laid  some  upon  the  counter  and 
some  upon  the  table,  asking  the  witness  if  he  had  heard 
about  the  McCormick  riot.  Witness  responded  that  he 
had.  Thereupon  Neebe  said,  "  It  is  a  shame  the  police 
act  that  way,  but  may  be  the  time  comes  that  it  goes  the 


other  wa}' — that  they  get  the  chance,  too."  Neebe  said: 
*'That  is  just  printed  nov\,"  when  he  came  in,  and  that 
he  had  got  the  circulars  at  Turner  Hall,  where  he  had 
attended  a  brewers'  meeting.  He  sta3-ed  five  or  ten 
minutes,  drank  some  beer,  and  left. 

(3.)  Detective  Marks  (A.,  138)  testified  that  about 
10  A.  M.,  on  the  5th  of  May,  he  visited  the  Arbeiter  Zeitung 
building,  met  Neebe  on  the  second  floor,  and  asked  who 
had  charge  of  the  office,  to  which  Neebe  replied,  "  I  am 
in  charge  in  the  absence  of  Mr.  Spies  and  Schwab"  (who 
had  then  been  arrested).  Upon  Marks'  suggestion  that 
he  would  go  upstairs  and  make  a  search  of  the  floor^ 
Neebe  responded,  "  All  right,  you  can  go,  but  you  will 
not  find  anything  there  but  papers  and  writing  materials.' 
Marks  went  up,  and  says  he  found,  in  one  of  the  closets' 
a  package  of  loose  dynamite;  he  put  it  on  a  chair,  and 
asked  Neebe  what  it  was,  to  which  Neebe  replied  that  he 
didn't  know,  but  guessed  it  was  for  cleaning  type. 

Detective  Haas  testified  (A.,  81)  that  when  he  went  to 
the  Arbeiter  Zeitung  office  on  May  5th,  he  found  Neebe 
in  charge  of  the  otTice,  and  Mayor  Harrison  in  conversa- 
tion with  him  there;  that  the  mayor  asked  who  was  in 
charge,  to  which  Neebe  replied,  "  I  am  in  charge,  or  will 
take  charge  in  the  absence  of  Spies  and  Schwab."  He 
swears  that  he  then  went  up  on  the  third  floor,  and  was 
present  zL'hen  Officer  Alarks  placed  the  alleged  -package 
of  dvnainite  Just  found  on  a  chair  in  the  center  of  the 
room,  but  does  not  pretend  that  JVeebe  was  present,  or 
made  the  remark  that  he  guessed  the  material  found  was 
for  cleaning  type,  from  which  we  feel  justified  in  arguing 
that  this  alleged  remark  by  Neebe  was  never  in  fact 
made. 

(4.)  Officer  John  Stift  (A.,  170)  says  that  he  was 
at  the  house    of    Neebe,  on    the   7th   of   May,   and  there 


found  a  thirty-eight  caHber  Colt's  pistol,  a  sword,  a  breech- 
loading  gun,  and  a  red  flag.  On  cross-examination  he 
admitted  that  the  gun  may  have  been  a  sporting  gun. 

(5.)  A  number  of  other  witnesses  stated  that  they 
knew  Neebe  {!). 

(6.)  It  appeared  from  the  testimony  of  Fricke  (A.,  41), 
Henry  E.  O.  Heineman  (A.,  126)  and  Seliger  (A.,  49) 
that  Neebe  was  at  one  time  a  member  of  the  north  side 
group  of  the  International  Workingpeople's  Association. 

(7.)  Fricke  testifies  (A.,  41)  that  Neebe  belongs  to 
the  corporation  publishing  the  Arbeiter  Zeitung,  and  that 
the  witness  had  seen  him  at  picnics  and  in  the  Arbeiter 
Zeitung  office. 

Up  to  the  time  of  the  motion  to  have  the  jury  instructed 
to  bring  in  a  verdict  of  not  guilty  as  to  Neebe,  the  above 
is,  we  believe,  a  fair  presentation  of  all  the  testimony  in 
the  record  against  him.  There  was  no  evidence  showing 
or  tending  to  show  that  he  attended  the  Haymarket  meet- 
ing or  knew  of  it  or  of  the  purpose  of  holding  it,  or  was 
a  party  to  any  agreement  that  violence  of  any  kind  should 
be  used  on  this  or  on  any  other  occasion. 

Upon  these  facts  the  motion  was  urged  for  this  instruc- 
tion in  his  behalf,  and  that  he  should  not  be  put  to  his  de- 
fense, or  further  jeopardized  in  the  case.  In  reference  to 
the  action  of  the  court  upon  this  motion  we  desire  to  call 
particular  attention   to  the  record. 

First  of  all,  counsel  for  plaintiffs  in  error  suggested 
that  they  wished  to  make  a  motion  which  they  desired  to 
argue  to  the  court,  and  to  that  end  requested  that  the  jury 
might  be  sent  from  the  room  pending  the  argument.  The 
court  refused  this  application,  and  required  that  any  mo- 
tion should  be  made  and  argued  in  the  presence  of  the 
jury,  to  which  ruling  an  exception  was  preserved.  There- 
upon the  motion  was   made,  and  attention  was  called  to 


the  want  of  evidence  connecting  Mr.  Neebe  in  anywise 
with  the  crime  committed  at  the  Haymarket.  The  court 
undertook  to  argue  this  question  with  counsel,  and  in  do- 
ing so  made  use  of  certain  expressions  and  suggestions 
which  in  our  opinion  were  highly  improper,  and  tended  to 
the  manifest  prejudice  of  Mr.  Neebe,  as  well  as  of  the 
other  plaintiffs  in  error.  (A.,  172,  173;  L,  i  to  25.) 
Amongst  other  things,  the  court  said:  "There  is  tes- 
"  timony  from  which  the  state  will  be  permitted  to  urge 
"  upon  the  jury  that  he  (Neebe)  presided  at  meetings  at 
"  which  some  of  the  speeches  were  made  urging  the  kill- 
"  '"S  rf  ■people.''''  .  We  maintain  that  that  statement  of  the 
court  was  utterly  unsupported  in  the  record.  There  was 
a  statement  in  the  report  of  a  meeting  published  in  one  of 
the  papers  which  the  court  permitted  to  be  read,  that 
Neebe  presided  at  such  a  meeting,  but  it  was  not  a  meet- 
ing where  speeches  were  made  "  urging  the  killing  of 
"  people,"  and  such  a  report  read  from  a  paper  was  not 
evidence  showing,  nor  even  tending  to  show — not  evi- 
dence from  which  the  state  would  be  "  permitted  to  urge 
"  upon  the  jury  "  that  Neebe  in  fact  presided  at  that 
meeting.  Aside  from  this,  even  if  there  had  been  such 
evidence,  would  it  be  material  to  the  issue? 

The  court,  further  proceeding,  said:  "  Is  there  not  evi- 
"  dence  in  the  case  from  which  the  state  will  be  permitted 
"  to  urge  upon  the  jury  that  he,  without  being  an  active 
"  man  in  the  Arbeiter  Zeitung,  j-et  was  interested  in  it, 
"  and  it  was  published  with  his  co-operation  and  consent, 
"  and  that,  therefore,  what  was  contained  in  it  received 
"  his  assent?  What  inference  can  they  urge  upon  this 
"jury  from  the  testimony,  that  when  the  officers  went 
"  there  after  he  was  in  charge,  and  asked  who 
"  was  in  charge,  he  replied  that  he  supposed  that 
"  in  the  absence  of  Spies  and  Schwab  he  was  in  charger 


223 

"  Whether  he  had  anything  to  do  with  the  dissemina- 
-"  tion  of  advice  to  commit  murder  is,  I  think,  a  debata- 
-"  bk  question  which  the  jury  ought  to  pass  upon."  Can 
the  making  of  such  a  remark  as  this,  in  the  presence  of 
the  jury,  be  e.vcused  or  justified  for  one  moment?  It 
practically  assumes  that  the  Arbeiter  Zeitung  was  en- 
gaged in  "the  dissemination  of  advice  to  commit  mur- 
-*'  der,"  and  then  expresses  the  opinion  to  the  jury  that  it 
was  debatable  upon  the  evidence,  whether  or  not  Mr. 
Neebe  had  anything  to  do  with  the  dissemination  of  such 
-advice. 

Evidence  of  "advice  to  commit  murder,"  or  its  dissem- 
ination, would,  we  respectfully  submit,  be  wholly  irrele- 
vant, without  evidence  tending  to  show  advice  to  commit 
the  murder  charged  in  the  indictment.  In  other  words, 
to  put  our  case  strongly,  we  submit  that  a  man  might 
stand  upon  the  street  corners  of  a  populous  city  and 
•cry  "kill,  kill,  kill,  murder,  murder,  murder,"  by  the 
hour,  day  and  week,  without  making  himself  thereby 
-criminally  responsible  for  some  murder  committed  by 
-some  unknown  party  not  connected  by  the  evidence  with 
him  in  any  manner  whatever.  If  the  question  of  the  dis- 
semination of  "  advice  to  commit  murder,"  in  the  general 
terms  stated  by  the  court,  was  not  a  question  legally  rele- 
vant to  the  issue  before  the  jury,  then  whether  Neebe 
had  anything  to  do  with  the  dissemination  of  such  advice 
was  not  "a  debatable  question  which  the  jury  ought  to 
"  pass  upon."  The  question,  and  the  only  question, 
which  the  jury  were  to  pass  upon  was  whether  Mr. 
Neebe  advised  the  commission  of  the  murder  charged  in 
the  indictment,  and  not  whether  "  he  had  anything  to  do 
"  with  the  dissemination  of  advice  to  commit  murder." 

Besides,  is  a  man  who  has  a  property  interest  in  a  pa- 
per  responsible  for  everything  published  therein?     And 


can  anything  be  urged  from  the  fact  that  Neebe  took 
charge  of  the  Arbeiter  Zeitung  oflice  after  the  arrest  of 
Schwab  and  Spies,  except  that  he  was  interested  in  pre- 
serving the  property  of  the  corporation,  to  which  he  be- 
longed, at  a  time  when  the  poHce  were  unlawfully  tres- 
passing upon  its  premises? 

Then  the  following  took  place  (L,  21  ): 
"The  Court:  If  it  depended  upon  prior  knowledge  and 
"  participation  at  the  Haymarket  meeting,  the  question 
"  would  be  quite  different;  but  if  there  is  general  advice  la 
''comnitl  murder,  the  lime  and  occasion  nol  being  Joresecu, 
"  tlie  adviser  is  gtcilly  when  il  (  /)  is  coinniitled.'" 

The  impropriety  of  this  observation  of  the  court  in  con- 
nection with  this  motion,  in  the  presence  of  the  jury,  with 
the  inevitable  tendency  that  it  would  have  to  impress  upon 
the  minds  of  the  jury  the  conviction  that  the  court  be- 
lieved that  Mr.  Neebe  had  been  a  party  to  advise  to  com- 
mit the  Haymarket  murder,  and  was  responsible  therefor, 
cannot  be  overstated.  As  to  the  viciousness  of  the  prin- 
ciple here  announced  by  Judge  Gary  as  the  law  we  shall 
have  occasion  to  speak  further  on  in  considering  the  in- 
structions given  by  the  court.  For  the  present  we  beg 
to  say,  with  all  due  respect,  that  the  suggestions  of  the 
court  in  the  course  of  the  argument  of  this  motion  in  Mr. 
Neebe's  behalf,  and  in  ruling  upon  it,  constituted  a  specious 
and  improper  argument,  calculated  to  influence  the  jury, 
and  to  prejudice  their  minds  against  Mr.  Neebe  by 
suggestions  having  no  support  in  any  legal  evidence 
in  the  case,  and  that  were  utterl}'  unwarranted  by  any 
accredited  theory  of  law.  We  maintain  that  there 
was  no  evidence  in  the  record  at  the  close  of  the  case 
attempted  to  be  made  by  the  stale  which  called  upon 
Mr.  Neebe  to  enter  upon  his  defense,  or  which  justified 
his  retention  for  one   moment  in  the  case   at  the  hazard 


225 

of  his  life.  The  molion  should  have  been  granted,  and 
its  refusal  was  palpable  error. 

The  attitude  thus  assumed  by  the  presiding  judge  as 
to  Mr.  Neebe  was  maintained  to  the  end  of  the  case. 
No  further  inculpatory  evidence  affecting  Mr.  Neebe 
being  brought  out  in  the  presentation  of  the  case  of  the 
plaintiffs  in  error,  the  following  instructions  were  asked 
•on  his  behalf,  viz.  (i  A.,  i8;  O,  i8): 

"  22.  The  fact,  if  such  is  the  fact,  that  the  defendant 
"  Neebe  circulated  or  distributed  or  handled  a  few  copies 
"  of  the  so-called  Revenge  circular,  and  while  doing  so 
"  said  substantially:  '  Six  workmen  have  been  killed  at 
"  McCormick's  last  night  by  the  police;  perhaps  the  time 
*'  will  'come  when  it  may  go  the  other  way,'  is  not  of 
"  itself  sufficient  to  connect  him  with  the  killing  of  De- 
"  gan,  nor  is  the  fact  that  he  had  in  his  house  a  red  flag, 
"  a  gun,  a  revolver  and  a  sword  sufficient,  even  when 
"  taken  together  with  the  other  statement  contained  in 
"  this  instruction,  to  connect  said  Neebe  with  the  act 
"  which  resulted  in  the  death  of  Degan,  as  charged  in 
-"  this  indictment. 

"  23.  There  has  not  been  introduced  any  evidence  in 
•"  this  case  to  either  show  that  the  defendant  Neebe,  by 
"  any  declaration,  either  spoken  or  written,  has  advised 
^'  or  encouraged  the  use  of  violence  or  the  doing  of  an\' 
"  act  in  any  way  connected  with  the  offense  at  the  Hay- 
"  market,  at  which  Degan  was  killed;  nor  is  there  any 
"  evidence  that  he  was  engaged  at  any  time  in  any  con- 
"  spiracy  to  do  any  unlawful  act,  or  the  doing  of  any  act 
"  in  an  unlawful  manner,  in  the  furtherance  of  which  said 
"  Degan  was  killed,  and  therefore  the  state  has  not  es- 
"  tablished  any  case  as  against  the  defendant  Neebe,  and 
"  you  are  therefore  instructed  to  render  a  verdict  of  not 
"  guilty  as  to  him. 


"  24.  The  jury  are  instructed  to  return  a  verdict  of 
"  not  guilty  as  to  the  defendant  Neebe." 

These  instructions,  we  maintain,  fairly  brought  to  the 
attention  of  the  jury  all  the  evidence,  legitimate  and 
irrevelant,  tending  to  inculpate  Mr.  Neebe,  and  charged 
that  such  evidence  was  not  sufficient  to  sustain  a  verdict. 
Can  there  be  any  doubt  as  to  this?  If  not,  then  the 
charge  asked,  that  the  jury  should  acquit  him,  ought  to 
have  been  given,  and  the  refusal  to  do  so  was  clearly  er- 
roneous, resulting  in  the  jeopardizing  of  his  life  unjustly, 
and  in  a  verdict  and  judgment  unrighteously  to  take  away 
his  liberty  for  fifteen  years.  We  believe  that  no  sufficient 
excuse  for  this  action  of  the  court  can  be  advanced. 


II.     THE  MOTION  EV  BEHALF    OF   THE   OTHER    PLAINTIFFS 
IX  ERROR,  EXCEPT  SPIES  ASD  FISCHER. 

After  the  motion  in  behalf  of  Mr.  Neebe,  above  con- 
sidered, had  been  argued  and  ruled  upon,  a  motion  was 
made  to  the  court  to  instruct  the  jurj'  to  find  a  verdict  of 
not  guilty  as  to  all  the  defendants  except  Spies  and 
Fischer,  which  motion  was  overruled,  and  an  exception 
saved.     (A.,  173;  L,  25.) 

When  the  state's  case  closed  there  had  been  an 
attempt  made  to  establish  by  proof  three  distinct  offenses: 

(i.)  A  general  purpose  or  design,  even  to  the  extent 
of  using  violence,  for  the  bringing  about  of  a  change  in 
the  order  of  society,  in  which  all  plaintiffs  in  error  except' 
Neebe  participated. 

(2.)  A  particular  agreement  entered  into,  on  the 
night  of  Monday,  May  3d,  to  take  particular  action  in 
certain  specified  contingencies,  to  which  only  Fischer  and 
Engel  were  parties. 


227 

(3-)  A  combination  between  Spies,  Schnaubelt  and 
Fischer,  on  the  night  of  May  4,  1886,  in  the  throwing  of 
the  bomb  which  resulted  in  the  death  of  Degan. 

There  was  no  evidence  to  show  any  inter-relation  be- 
tween these  three  distinct  offenses;  and  no  evidence  to 
show  that  any  of  the  plaintiffs  in  error  other  than  Spies 
and  Fischer  were  parties  to  the  combination  to  throw  the 
bomb,  to  perpetrate  the  crime  charged  in  the  indictment. 
We  maintain  that  the  state  could  have  no  right  to  experi- 
ment in  this  condition  of  the  case — to  rely  upon  the  proof 
introduced  tending  directly  to  implicate  Spies  and  Fischer, 
and  at  the  same  time  rely  upon  proofs  introduced  attempt- 
ing to  involve  Fischer  and  Engel  on  the  ground  of  a  dis- 
tinct conspiracy,  and  all  of  the  plaintiffs  in  error  on  the 
ground  of  the  "  general  combination,"  which,  too,  was 
distinct  and  separate  from,  and  unconnected  by  the  evi- 
dence with,  the  combination  of  May  4th. 

As  to  each  of  these  issues  the  respective  plaintiffs  in 
error  had  a  right  to  a  trial  disembarrassed  of  the  con- 
sideration of  the  other  special  issues,  with  which  they 
were  not  respectively  connected  by  the  evidence,  and 
upon  our  motion  above  referred  to  it  vvas  the  duty  of  the 
court  to  put  the  state  to  its  election,  and,  upon  election, 
to  exclude  all  the  evidence  of  the  other  distinct  offenses. 

In  the  case  of  Baker  v.  The  People,  105  111.,  452,  there 
was  an  indictment  charging  Clarence  Baker  and  Eliza 
Graves  with  the  crime  of  attempting  to  procure  and  pro- 
duce the  miscarriage  of  Martha  Van  Antwerp,  and  there 
was  a  verdict  and  judgment  of  guilty.  In  that  case  there 
was  the  positive  testimony  of  the  prosecutrix.  Van  Ant- 
werp, that  she  had  had  carnal  intercourse  with  the  de- 
fendant Baker;  that  he  procured  a  bottle  of  medicine 
for  the  purpose  of  producing  a  miscarriage,  and  there- 
after inserted  a  wire  into  her   body  with  a  hook  upon  the 


and.  This  evidence  was  admitted  over  the  objection  of 
the  plaintiffs  in  error.  There  was  further  testimony  to 
the  eflect  that,  these  efforts  at  abortion  having  proved 
ineffective,  the  prosecutrix,  under  the  advice  of  Baker, 
went  with  him  to  Eliza  Graves,  by  whom  the  abortion 
was  subsequently  produced. 

Upon  this  state  of  the  case,  upon  a  writ  of  error  sued 
out  by  Baker,  who  was  inculpated  by  all  the  evidence, 
tills  court  held  as  follows,  viz: 

"  It  may  be  observed,  in  conclusion,  at  the  close  of  the 
"  testimony,  when  it  affirmatively  appeared  that  Eliza 
"  Graves  was  in  no  manner  connected  with  the  transac- 
"  tion  at  the  residence  of  the  prosecutrix,  in  which  she 
"  claims  a  wire  was  used  by  defendant  Baker  alone,  i/ie 
"  -people  shotild  have  been  put  to  their  election,  whether 
"  they  would  proceed  against  Baker  alone  for  using  the 
"  wire,  or  against  them  both  for  what  occurred  at  the 
"  house  of  defendant  Graves.  Assuming  the  evidence  of 
"  the  prosecutrix  to  be  true,  it  established  two  offenses: 
"  One  committed  by  Baker  alone,  and  the  other  by  him 
"  and  Mrs.  Graves  jointly;  and  if  the  prosecution  elected 
"  to  proceed  for  the  latter  offense,  all  evidence  of  the  Jor- 
^  nwr  shotild  have  been  excluded  from  the  jury,  as  it  is 
^  well  settled  that  upon  the  trial  of  a  party  for  one  offense, 
"  growing  out  of  a  specific  transaction,  you  cannot  prove 
"  a  similar  substantive  offense  founded  upon  another  and 
"  separate  transaction,  but  in  such  case  the  prosecution 
"  will  be  put  to  its  election.  *  *  *  Yox  the  error  in- 
"  dicated  in  the  judgment  of  the  court  below,  the  judg- 
"  ment  will  be  reversed  and  the  cause  remanded  for  fur- 
"  ther  proceedings." 

In  Womack  v.  Tlic  State,  7  Coldwell's  Reports,  50S, 
the  doctrine  is  laid  down  that  where  the  indictment 
charges  a  single  felony,  but  the  proof  shows  two  distinct 


felonies  to  have  been  committed,  as,  for  example,  the  felo- 
nious killing  of  two  men  by  one  shot,  the  intent  to  kill 
one  of  the  men  being  distinct  and  separate  from  the  intent 
to  kill  the  other,  then  the  State  will  be  required  to  confine 
its  testimon}'  to  one  of  the  felonies;  or,  if  testimony  as  to 
the  other  felony  necessarily  comes  in  in  connection  with 
the  testimony  as  to  the  one,  then  the  court  would  instruct 
the  jury  to  confine  their  verdict  to  the  issue  as  to  one 
felony,  and  to  disreoard  all  testimony  except  that  bearing 
upon  the  one  felony  considered. 

The  effect  of  a  granting  of  the  motions  interposed  at 
the  close  of  the  state's  case  would  have  been  to  give  te 
the  different  plaintiffs  in  error,  apparently  involved  by  the 
state's  proof  in  these  different  alleged  offenses,  the  benefit 
of  a  separate  trial,  to  which,  upon  the  evidence  then  in  the 
record,  they  were  most  certainly  entitled. 

That  our  objection  is  well  taken  here  is  evidenced, 
first,  by  the  fact  that  a  motion  for  a  separate  trial  in  be- 
half of  certain  of  the  plaintiffs  in  error  was  aptly  pre- 
sented but  overruled;  and,  second,  from  the  further  fact 
that  the  law  awards  to  a  defendant  upon  his  motion  for  a 
new  trial  the  benefit  of  every  point  of  this  character, 
(Wharton's  Criminal  Pleadings  and   Practice,  Sec.  874.) 

In  People  v.  Vermilyea,  7  Cowan,  *io8,  the  rule  in  ref- 
erence to  cases  of  this  character  is  thus  stated  by  Mr. 
Justice  Woodward  (139),  the  rule  in  New  York  being  the 
same  as  in  our  own  State,  that  the  granting  of  separate 
trials  lies  in  the  sound  discretion  of  the  court: 

"I  concur  with  the  chief  justice  in  his  remark  upon  Mr, 
'•  Barker's  motion,  and  particularly  in  the  suggestion  upon 
"  the  question  of  severance.  We  do  not  consider  the  case 
"before  us  for  the  purpose  of  deciding  what  the  judge  should 
"  do  in  the  exercise  of  that  discretion  which  he  undoubtedly 
"  possesses.   But  I  clearly  hold,  that  were  I  presiding  at  the 


230 

"  trial  of  a  criminal  charge  against  persons  jointly  indicted, 
"  but  wholly  disconnected  in  the  acts  through  which  they 
"  are  sought  to  be  convicted,  on  ascertaining  that  fact,  I 
"  should  deem  it  my  duly  to  grant  them  separate  trials." 
In  State  v.  Roulstone,  3  Sneed's  Reports,  107,  it  was 
held  that  two  defendants  cannot  be  jointly  indicted  for  an 
offense  in  its  nature  necessarily  individual,  as,  for  exam- 
ple, the  uttering  of  obscene  or  libelous  language,  where 
each  offender  must  answer  for  his  own  act.  In  presenting 
the  rule,  the  court  states  ^^p.  109)  that  the  duplicity  in  crimi- 
nal proceedings,  which  is  prohibited  by  the  rule  of  law, 
"  consists  in  including  two  different  and  distinct  crimes  in 
"  the  same  count,  or  more  than  one  person  in  a  count  where 
"  the  acts  charged  were  in  fact  several,  or  in  their  nature 
"incapable  of  unity  of  agency."  As  applicable  to  the 
case  at  bar,  where  is  charged  the  single  offense  of  murder, 
and  where  the  testimony  in  behalf  of  the  state,  if  believed 
to  be  true,  proved  the  actual  commission  of  the  offense  by 
the  separate  and  concurrent  act  of  the  plaintifTs  in  error, 
Spies  and  Fischer,"  without  showing  any  concert  between 
them  and  the  other  plaintiffs  in  error,  or  showing  that  their 
act,  then  and  there  committed,  was  done  under  the  aid, 
advice,  encouragement  or  counsel  of  the  other  plaintiffs  in 
error;  in  other  words,  where  the  testimony,  if  believed, 
established  the  guilt  of  two  of  the  plaintiffs  in  error,  by 
virtue  of  a  several  and  independent  act,  disconnected  from 
tlie  remaining  plaintiffs  in  error,  there  should  have  been  a 
severance,  which  would  have  been  accomplished  by  the 
granting  of  the  motion  made;  and  it  was  error  to  require 
the  plaintiffs  in  error,  other  than  Fischer  and  Spies,  to 
meet  the  effect  in  the  minds  of  the  jury  of  the  particular 
testimony  as  to  their  separate  and  independent  acts. 


231 


B.    ERRORS  COMPLAINED  OF. 

We  have  thus  far  argued  in  support  of  our  contention 
that,  upon  this  record,  the  plaintiffs  in  error  are  not  guilt}-. 
We  have  considered  this  case  upon  what  we  believe  to  be 
the  legitimate  evidence  introduced,  and  have  also  reviewed 
measurably  the  illegitimate  evidence,  calling  attention  to 
the  errors  obtaining  in  connection  with  the  introduction 
thereof.  We  have  shown  that  even  upon  this  illegitimate 
*;vidence  the  state  failed  to  make  a  just  claim  to  a  convic- 
tion, under  the  law  applicable  to  the  case,  we  have 
further  considered  the  erroneous  action  of  the  court  in  re- 
fusing to  grant  our  motions  interposed  at  the  close  of  the 
evidence  offered  in  behalf  of  the  state,  and  have  called 
special  attention  to  the  errors  of  the  court  in  refusing  the 
instructions  having  particular  reference  to  the  plaintiffs  in 
error,  Louis  Lingg  and  Oscar  Neebe.' 

We  come  now  to  the  consideration  of  the  errors 
committed  by  the  court  on  the  trial  other  than  those  con- 
sidered in  connection  with  our  review  of  the  evidence. 
This  field  of  review  embraces,  as  its  principal  features,  the 
errors  committed  by  the  court  in  the  matter  of  the  in- 
structions, given  and  refused;  the  errors  obtaining  in  con- 
nection with  the  empaneling  of  the  jury;  the  improper 
remarks  of  the  court;  the  improprieties  of  the  closing 
argument  of  the  state's  attorney,  and  the  errors  obtaining 
after  the  verdict.  To  this  branch  of  the  case  we  most 
earnestly  ask  the  court's  patient  attention;  satisfied  of  our 
ability  to  demonstrate  the  truth  of  the  proposition  that 
under  all  of  the  above  heads  our  clients  have  been  ag- 
grieved by  material  error  appearing  of  record. 


232 


AA.    ERRORS  IN  THE  MATTER  OF  INSTRUCTIONS. 

SUMMARY    OF    OUR    COMPLAINTS. 

First.  In  the  instructions  given  in  behalf  of  the  people 
and  in  the  refusal  of  certain  of  those  by  the  defendants, 
the  court  proceeded  upon  the  erroneous  theory  that  par- 
ties not  present  at  and  aiding  the  perpetration  of  the 
crime,  may  be  held  as  accessories  on  the  ground  of  frior 
advice  and  aid,  without  the  State  being  required  to  in  any 
manner  identify  the  criminal  actor. 

Second.  The  instructions  given  in  behalf  of  the  peo- 
ple with  reference  to  finding  the  defendants  guilty  as 
accessories  to  an  jinknown  principal,  were  further  eiro- 
neous,  in  view  of  the  fact  that  the  evidence  offered  by  the 
State  tended  to  identify  the  bomb-thrower  as  Rttdolfh 
SchnaubcU.  The  people's  instructions  should  have  con- 
formed to  their  evidence. 

Third.  The  court  based  a  number  of  instructions  on 
hypotheses  unwarranted  by  any  evidence. 

Fourth.  The  instructions  given  for  the  people  were 
erroneous  in  assuming  that  there  is  in  laiv  such  a  thing 
as  advice  to  commit  murder,  without  designating  the 
victim,  time,  place  or  occasion;  in  other  words,  that  mere 
general  advice  to  the  public  at  large  to  commit  deeds  of 
violence,  as  contained  in  speeches  or  publications,  with- 
out reference  to  the  particular  crime  charged,  and  without 
specifying  object,  manner,  time  or  place,  works  responsi- 
bility as  for  murder. 

Fifth.  In  the  most  vital  instruction  given  on  behalf 
of  the  People,  to  which  we  shall  call  particular  attention 
further  on,  there  was  the  fatal  error  of  an  omission  oj  all 
reference  to  the  evidence. 


233 

Sixth.  The  instructions  given  for  the  people  in  regard 
to  what  constitutes  reasonable  doubt  were  erroneous. 

Seventh.  The  instruction  to  the  jury  limiting  their 
right  to  judge  of  the  law  was  erroneous. 

Eighth.  The  court  refused  to  give  an  instruction  allow- 
ing the  jury  to  consider  whether  the  bomb  in  question 
might  not  have  been  thrown  by  some  unknown  person 
under  some  sudden  provocation,  by  reason  of  a  supposed 
unlawful  attack  by  the  police  upon  a  peaceable  and  law- 
ful assemblage,  without  the  knowledge,  aid,  counsel,  pro- 
curement or  encouragement  of  the  plaintiffs  in  error,  or 
any  of  them. 

Ninth.  After  giving  the  instructions  which  were  given 
on  behalf  of  the  people,  and  such  instructions  as  were 
given  on  behalf  of  the  defendants,  the  court,  of  its  own 
motion,  gave  an  instruction  in  which  he  undertook  to 
summarize  and  condense  all  of  the  instructions  in  the  case. 
But  this  instruction  was  fatally  defective  under  the  rule 
laid  down  by  this  court,  in  that  it  wholly  failed  to  present 
all  the  law  of  the  case  fully  and  correctly. 

Tenth.  The  instruction  given  by  the  court  in  reference 
to  the  form  of  the  verdict,  which  was  given  as  the  last  of 
the  entire  series,  was  fatally  defective  in  that  it  left  to  the 
jury  no  alternative  but  to  find  the  defendants,  respectively, 
guilty  of  murder,  in  manner  and  form  as  charged  in  this 
indictment,  or  to  acquit  them. 

Eleventh.  The  instructions  given  for  the  state  are  bad 
for  duplicity  in  presenting  different  theories  of  a  supposed 
conspiracy,  and  certain  of  those  instructions  are  re- 
pugnant and  inconsistent  in  themselves. 


234 


I.     The  Necessity  of  Identifying  the  Principal  in 

THE  CASE  AT  BaR. 

In  order  to  illustrate  our  complaint  in  this  regard,  we 
beg  to  call  attention  to  instruction  4  given  for  the  state, 
which  is  as  follows  (i  A.,  7;  O,  3)  : 

"  The  court  further  instructs  the  jury,  as  a  matter  of  law, 
that  if  they  believe  from  the  evidence  in  this  case,  beyond 
a  reasonable  doubt,  that  the  defendants,  or  an}'  of  them, 
conspired  and  agreed  together,  or  with  others,  to  over- 
throw the  law  by  force,  or  to  unlawfully  resist  the  officers 
of  the  law,  and  if  they  further  believe  from  the  evidence, 
beyond  a  reasonable  doubt,  that  in  pursuance  of  such  con- 
spiracy, and  in  furtherance  of  the  common  object,  a  bomb 
was  thrown  by  a  member  of  such  conspiracy  at  the  time, 
and  that  Malhias  J.  Degan  was  killed,  then  such  of  the 
defendants  that  the  Jurj'  believe  from  the  evidence,  beyond 
a  reasonable  doubt,  to  have  been  parties  to  such  conspir- 
acy, are  guilty  of  murder,  whether  present  at  the  killingor 
not,  and  whether  the  identity  of  the  person  throwing  the 
bomb  be  established  or  not.'''' 

It  will  appear  from  this  instruction,  as  in  fact  from  all  in- 
structions given  for  the  people,  that  the  state  entirely 
abandoned  the  theory  that  Rudolph  Schnaubelt  threw 
the  bomb,  and  that  the  plaintiffs  in  error  were  accessories 
before  the  fact  to  his  crime.  The  instructions  will  be 
searched  in  vain  for  even  the  slightest  allusion  to  Gilmer's 
testimony,  the  only  evidence  in  the  case  by  which  the  iden- 
iity  of  the  bomb-thrower  was  sought  to  be  established, 
but  the  theory  adopted  was  that  the  bomb  was  thrown 
by  an  unknozvn,  uiidescribcd,  unidentified,  unindividuated 
person.  So  instruction  4  says:  "whether  the  identity  ol 
the  person  throwing  the  bomb  be  established  or  not.''''     In- 


235 

struction  s|  says:  "  All  of  such  conspirators  are  guilty  of 
"  such  murder,  whether  the  person  who  perpetrated  such 
"  murder  can  be  identified  or  not"  etc.  With  the  aban- 
donment of  the  theory  that  Rudolph  Schnaubelt  threw 
the  bomb,  the  theory  that  Adolph  Fischer  and  August 
Spies  stood  by  and  aided  him  was  given  up;  and  noth- 
ing contained  in  any  of  the  instructions  in  the  slightest 
degree  indicates  that  that  part  of  the  evidence  was  relied 
upon  by  the  state.  From  this  it  follows  that  the  instruc- 
tions called  upon  the  jury  to  find  the  plaintiffs  in  error 
guilty  on  the  ground  of  having,  without  being  present  at 
the  time  and  place  of  the  bomb-throwing,  theretofore  ad- 
vised, encouraged,  aided  or  abetted  an  unknown,  unidenti- 
fied ferson  in  the  perpetration  of  that  crime. 

There  can  be  no  conviction  under  our  statute  of  a 
party  as  an  accessory  before  the  fact,  without  legal  prooj 
showing  a  causal  relations/iip  between  such  alleged  acces- 
sory and  the  principal  in  the  offense. 

Where  the  evidence  shows  the  accused  present  and 
aiding,  abetting  or  assisting  the  perpetration  of  the 
crime,  such  causal  relationship  sufficiently  appears  with- 
out proving  the  hand  that  did  the  act.  But  where  a  party 
is  sought  to  be  held  on  the  sole  ground  of  alleged  prior 
advice,  assistance,  abetting  or  encouragement,  such 
causal  relationship  can,  in  the  nature  of  things,  only  be 
established  by  identifying  the  criminal  actor;  not  neces- 
sarily by  name  or  minute  description,  but  the  fact  that  he 
is  the  same  person  who  was,  at  another  time  and  place, 
advised,  encouraged,  etc.,  by  the  accused,  must  be  shown 
b}'  legal  proof;  the  principal  must  be  individuated,  oth- 
erwise the  hypothesis  of  the  criminal  actor  being  some 
person  wholly  unconnected  with  the  accused  is  not  ex- 
cluded. In  such  a  case  the  jury  would  be  allowed  to 
g-uess  that  the  criminal  actor  was    a  person   advised   and 


236 

assisted   beforehand  by  the   accused,  and  to  frestime  the 
guilt  of  the   defendant. 

To  illustrate  our  position.  If  A,  the  defendant,  is  pres- 
ent, and  aiding  X  (the  unknown,  undescribed,  unidenti- 
fied principal  actor)  in  the  throwing  of  a  bomb  into  a 
Squad  of  police,  this  is  sufficient  to  estabHsh  his  guilt  as- 
accessory.  But  suppose  that  A  advises  C,  D  and  E  to 
throw  a  bomb  into  the  police  at  a  future  time,  and  aft- 
erwards, zviihoiit  his  being  present,  aiding  or  assisting,. 
so7nebody  throws  a  bomb  among  the  police:  now,  unless  it 
be  shown  that  the  somebody  was  either  C,  D  or  E,  how 
can  it  be  said  that  A  advised  or  aided  him?  In  other 
words,  if  the  somebody  is  an  entirely  unknown,  unde- 
scribed, unidentified,  unindividuated  person,  an  essential 
element  in  the  chain  of  evidence  connecting  the  defendant 
with  the  bomb-throwing  is  lacking.  X,  the  unknown 
criminal  actor,  may  have  been  a  person  who  acted  inde- 
pendently of  A,  unadvised,  unassisted  by  him.  We  do 
not  claim  that  the  bomb-thrower  must  be  described  by 
name  or  details  of  personahty,  but  sufficient  must  appear 
to  establish  his  identity  as  one  of  the  parties  shown  to  have 
been  advised  and  aided,  etc.,  by  A. 

In  reply  to  this  contention  upon  our  part  it  will  doubt- 
less be  urged  that  the  jury  were,  under  the  instructions, 
required  to  find  that  the  bomb-thrower  was  a  member  of 
the  alleged  conspiracy,  as  a  condition  of  finding  the  guilt 
of  the  accused;  membership  in  the  supposed  conspiracy 
being  advanced  as  in  law  the  equivalent  of  that  aid 
advice,  assistance,  etc.,  laid  in  the  indictment.  But  our 
reply  is  that  this  general  feature  of  these  instructions  does 
not  help  out  the  case  of  the  people,  for  the  reason  that 
membership  in  the  supposed  conspiracy  could  not  be  proved 
■withotd  some  evidence  0/  identification.  It  cannot  be 
proved  that   an   altogether   unidentified,  undescribed,  un- 


237 

individuated  person  is  a  member  of  a  band  of  conspirators. 
It  is  not  a  case  where  the  membership  of  the  criminal 
actor  in  the  supposed  conspiracy  can  be  proved  simply 
by  showing  the  commission  of  such  a  crime  as  contem- 
plated by  the  supposed  conspirators.  And  in  this  case  to 
tell  the  jury  that  any  identification  of  the  criminal  actor 
in  the  Hay  market  tragedy  was  unnecessary,  was  to  tell 
them  that  if  they  found  a  conspiracy  and  then  a  crime, 
such  as  planned  by  that  conspiracy,  they  might  ouess  that 
the  character  of  the  crime  sufficiently  proved  that  the 
criminal  actor  was  one  of  the  conspirators.  To  illustrate 
our  position: 

Suppose  that,  in  the  case  at  bar,  the  only  count  was 
one  charging  Schnaubelt  as  principal  and  the  accused  as 
accessories.  Would  it  be  enough  to  prove  a  conspiracy 
between  the  accused  and  the  commission  of  the  crime  by 
Schnaubelt?  Would  the  jury,  in  such  a  case,  be  per- 
mitted to  find  a  verdict  without  any  other  evidence  of 
Schnaubelt's  participation  in  the  conspiracy  than  his  com- 
mission of  the  crime?  Of  course  not!  The  proof  of  his 
participation  in  the  conspiracy  is  just  as  necessary  to  be 
made  out  clearly  by  the  evidence,  in  order  to  meet  the 
claim  of  advice,  etc.,  as  any  other  part  of  the  case.  On 
the  other  hand,  if  the  charge  were  limited  alone  to  that 
of  accessoryship  to  an  unknown  bomb-thrower,  here, 
also,  must  be  proof  not  only  that  the  bomb  was  in  fact 
thrown  by  one  unknown,  but  -proof  that  the  unknozvn  -was 
a  member  of  the  conspiracy  charged.  But  this  cannot  be 
done  without  some  identification;  and  the  mere  commis- 
sion of  the  crime  no  more  proves  membership  in  the  al- 
leged conspiracy,  or,  in  other  words,  meets  the  legal  re- 
■quirement  of  such  proof,  in  the  case  of  an  unknown  actor, 
than  in  the  case  of  one  whose  name  is  known.  It  was, 
therefore,  clearly  repugnant  for  the  court  to  tell  the  jury 


238 

that  the  bomb  must  have  been  thrown  by  a  conspirator 
with  plaintiffs  in  error,  and  in  the  same  breath  tell  them 
that  the  state  need  not  by  evidence  identify  the  bomb- 
thrower,  in  a  case  where  the  claim  that  had  to  be  estab- 
lished under  the  instructions  was  that  the  bomb  was  in 
fact  thrown  by  an  unknown  person,  under  the  advice,  aid, 
encouragement,  etc.,  of  the  accused  theretofore  given. 
The  repugnancy  in  this  line  of  instruction  was  clearly 
vicious. 

Thompson   on  Charging   the  Jury,    pages 

97,  98. 
Woodv.  Sleainboat,  19  Mo.,  529,  531. 

The  jurors  are  not  lawyers  or  expert  grammarians,  who 
can  apply  in  their  true  sense  the  various  clauses  of  such  in- 
structions as  No.  4  above  set  forth.  This  instruction  in  the 
first  clause  requires  of  the  jury  that  they  must  find  "  from 
"  the  evidence,  beyond  a  reasonable  doubt,  that  in  pursu- 
"  ance  of  such  conspiracy  and  in  furtherance  of  the  com- 
"  mon  object,  a  bomb  was  thrown  by  a  member  of  suck 
"  conspiracy  at  the  time^''  and  then  in  the  concluding 
clause,  when  the  mind  of  an  ordinarily  intelligent  per- 
son would  forget,  or  be  unable  to  interpret,  the  pre- 
ceding section,  by  reason  of  the  long  clause  intervening, 
the  jury  are  instructed  that  the  defendants  are  guilty  cf 
murder,  "  whether  the  identity  of  the  person  throwing  the 
"  bomb  be  established  or  not." 

If  the  bomb-thrower  is  an  unknown,  unidentified,  unin- 
dividuated  person,  how  can  he  be  proved  beyond  a  rea- 
sonable doubt  to  be  a  member  of  the  conspiracy? 

How  can  a  person  be  shown  to  be  a  member  of  a  con- 
spiracy beyond  a  reasonable  doubt  when  the  person  can- 
not be  identified  by  the  jury?  If  he  is  to  be  shown  to  be 
a  member  of  a  conspiracy  beyond  a  reasonable  doubt, 
surely  his   identity  must   be  established,  if   not    by  name. 


239 

then  in  some  other  way,  such  as  by  showing  that  he  had 
but  one  arm  or  one  leg,  or  by  some  description. 

If,  e.  ^.,  there  had  been  evidence  that  the  plaintiffs  in 
error  on  Monday,  May  3d,  had  held  a  meeting  and  agreed 
upon  a  plan  of  violence  at  a  gathering  to  be  called  for  the 
next  evening;  if  there  had  further  been  evidence  that  a 
one-armed  man  with  black  whiskers  was  a  party  to  that 
combination,  and  that  at  the  meeting  on  the  next  evening 
a  one-armed  man  with  black  whiskers  threw  a  bomb, 
then,  although  his  name  were  unknown,  and  no  further 
description  of  details  of  personality  could  be  given,  still 
here  would  be  evidence  from  which  a  jury  might  fairly 
be  allowed  to  conclude  that  the  identity  was  established 
with  reasonable  certainty.  But  if  the  only  fact  proved 
were  that  a  bomb  zvas  thrown  from  the  midst  of  a  crowd 
of  a  few  hundred  people,  while  no  living  being  could  tell 
which  one  of  them  did  the  dastardly  deed,  if  not  the 
slightest  indication  existed  even  as  to  what  kind  of  a 
looking  man  he  was,  how  in  the  name  of  common  sense 
can  it  be  claimed  that  he  is  proved  to  be,  "  beyond  all 
reasonable  doubt,"  a  member  of  the  conspiracy  supposed 
in  this  illustration? 

At  the  common  law,  no  person  could  be  convicted  as 
accessory  until  after  a  conviction  of  the  chief  offender;  and 
no  evidence  could  be  introduced  to  prove  this,  except  the 
record  of  his  conviction.  The  English  statute  of  7  Geo. 
IV  qualified  this  doctrine,  and  our  own  statute  was  passed 
with  the  intention  of  qualifying  it. 

Our  statute  declares  that  an  accessory  shall  be  con- 
sidered as  principal,  and  punished  accordingly.  This 
only  places  the  principal  and  accessory  upon  the  same 
footing,  as  far  as  the  punishment  is  concerned,  but 
it  does  not  abolish  the  common  law  distinction  between 
the  principal,  who  actually  commits    the    deed,  and  the 


240 

accessory,  who  simply  lends  assistance.  This  distinction 
is  clearly  upheld  by  our  statute  when  it  says  that  the 
"  accessory  "  may  be  indicted,  etc.,  with  or  without  the 
"  principal."  It  does  not  say  that  the  two  crimes  become 
one.  As  a  test  of  this  let  us  suppose  A  advises  B  to  take 
his  pistol  and  kill  C.  A  goes  alone  and  does  it.  Sup- 
pose, then,  that  A  be  indicted  for  advising  and  assisting  B 
in  the  killing,  and  B  be  indicted  for  the  act  of  killing,  and 
in  describing  the  body  of  the  offense,  the  pleader  avers 
that  B  killed  C  "  with  a  certain  pistol,  which  in  his  right 
"  hand  he  there  had  and  held,"  would  not  both  have 
to  be  acquitted  on  the  doctrine  of  variance?  It  is 
of  the  very  essence  of  the  conception  of  accessorj'ship 
that  somebody,  as  principal,  should  have  committed  the 
criminal  deed.  Without  a  principal  there  can  be  no  ac- 
cessory, and  therefore  a  person  charged  as  accessory  can- 
not be  legally  convicted,  unless  he  is  shown  beyond  a  rea- 
sonable doubt  to  have  assisted,  etc.,  "the"  principal. 

Wharton  says  in  his  Crim.  Law,  Vol.  i.  Sec.  237: 
"  By  statutes,  however,  now  almost  universally  adopted, 
"  the  offense  of  an  accessory  is  made  substantive  and  in- 
"  dependent,  and  consequently  the  accessor}^  may  be  tried 
"  independently  of  the  principal,  though  in  such  case  the 
"  guilt  of  the  principal  must  be  alleged  and  proved." 

In  State  v.  Richer,  29  Me.,  84,  the  court,  in  delivering 
its  opinion  and  interpreting  a  statute  which,  in  legal  effect, 
is  similar  to  our  own,  saj's: 

"  By  the  modification  of  the  common  law,  in  these  pro- 
"  visions,  more  effectual  modes  for  the  prosecuiioa  and  pun- 
"  ishment  of  accessories  before  the  fact  to  felonies  was  in- 
"  tended.  The  change  has  the  tendency  to  prevent  the  de- 
"  lays  attending  the  trial  and  escape  of  accessories  arising 
"  from  the  failure  to  bring  the  principals  to  trial.  The  his- 
"  tory  of  legislation  upon  this  subject  conclusively  shows 


241 

"  that  such  was  the  purpose.  These  provisions  in  the  re- 
"  vised  statutes  are  the  same  as  those  of  the  statute  of  183 1, 
"  Chap.  504,  Sec.  i.  The  statute  of  Massachusetts  of  1830, 
"  Chap.  49,  Sec.  i,  and  the  revised  statutes  of  that  com- 
"  monwealth  of  1836  are  identical  with  those  of  this  state; 
"  and  ail  are  in  the  same  terms  as  those  in  the  statute  of 
"  England,  7  Geo.  IV,  Chap.  64,  Sec.  9,  which  section 
"  commences  with  the  words,  '  and  for  the  more  effectual 
"  prosecution  of  accessories  before  the  fact  to  felony,  be  it 
"  enacted,' etc.  *  *  *  It  is  insisted  in  behalf  of  the 
"  prosecution,  that  by  the  last  mode  it  was  intended  that 
"  such  accessory  could  be  indicted  as  a  principal  in  all  re- 
"  spects,  in  the  manner  and  form  that  he  would  be  in- 
"  dieted  if  he  did  the  act,  which  at  common  law  would 
"  constitute  him  as  principal.  It  is  obvious  that,  upon 
"  such  a  construction,  the  distinction  of  principal  and  ac- 
"  cessory  before  the  fact  may  be  entirely  disregarded. 
"  Was  this  the  design  of  the  legislature?  We  cannot 
"  believe  that  it  was. 

"  In  the  former  part  of  the  section,  the  crimes  of  the 
"  principal  and  the  accessory  are  presented  as  being  dis- 
"  tinct.  Nothing  indicates  an  intention  that  they  should 
"  not  remain  so." 

Thg  court,  after  reasoning  the  case,  and  giving  a  his- 
tory of  the  question,  etc.,  concludes  as  follows:  "  The 
"  guilt  of  the  latter  (the  principal)  will  be  alleged  in  the 
«'  same  manner  as  if  he  alone  had  been  concerned,  fol- 
"  lowed  by  the  averment  of  the  acts  done  by  the  procurer 
"  which  constitute  him  accessory  before  the  fact.  The 
"  guilt  of  the  -principal  is  a  necessary  fact  to  be  shozvn  on 
"  the  trial,  in  order  to  obtain  a  conviction  of  the  accessory, 
"but  the  record  of  a  conviction  is  not  required;  other 
"competent  proof  is  sufficient." 

From   these  cases   it  would   seem  that  the  object  and 


242 

Bcope  of  the  statute  of  7  Geo.  IV,  which  is  the  first,  fol- 
lowed by  other  statutes  of  similar  import,  in  Maine, 
Massachusetts,  and  other  states,  and  in  the  State  of  Illi- 
nois, is  to  facilitate  the  punishment  of  accessories,  and 
not  destroy  the  distinction  which  had  existed  between 
principals  and  accessories.  A  person  who  was  principal, 
without  these  statutes,  would  still  be  principal;  an  acces- 
sory would  still  be  an  accessory. 

Now,  what  does  it  mean,  when  the  Supreme  court  of 
Maine  say  that  "  the  guilt  of  the  principal  is  a  necessary 
"  fact  to  be  shown  on  the  trial,  in  order  to  obtain  a  con- 
"  viction  of  the  accessory  "?  It  surely  does  not  mean  that 
the  fact  of  a  crime  having  been  committed  must  be  estab- 
lished. It  would  not  be  necessary  to  speak  about  princi- 
pal and  accessory  in  order  to  express  this  idea.  The  idea 
is,  that  there  is  no  principal  without  an  accessory,  no  acces- 
sory without  a  principal,  and  that  no  man  can  be  held  as  an 
accessory,  unless  he  be  shown  to  have  aided  and  advised 
HIS  principal.  The  guilt  of  the  "  principal,"  as  the  princi- 
pal to  ail  accessory,  must  be  shown,  in  order  to  convict 
the  "  accessory,"  as  the  accessory  to  the  principal. 

In  Baxter  v.  People,  2  Gil.,  578,  in  passing  upon  the 
provisions  of  our  statute,  in  reference  to  accessories  before 
the  fact,  the  following  language  is  used  by  this  coi^t: 

"  Under  our  statute,  an  accessory  may  be  indicted  and 
*'  punished  as  principal,  and  i)i  such  case  it  zvoidd  be  neces- 
*'  saryfor  the  prosecution  to  make  out  the  guilt  of  the 
*'  PRINCIPAL,  before  the  jury  could  find  the  defendant  guilty 
"  of  the  murder  by  being  an  accessory  to  it.'''' 

The  purpose  of  our  statute  to  make  the  accessory 
before  or  at  the  fact  the  principal,  is  obviously  based  upon 
the  theory  "  that  what  we  advise  or  procure  another  to 
"  do,  in  the  eye  of  the  law,  we  do  ourselves,"  as  has  been 
declared  by  this  court.     But  upon   this  theory,  it  cannot 


243 

be  doubted  that  to  charge  the  principal  for  the  act  of  his 
alleged  agent,  the  agency,  or  as  before  stated,  the  causal 
relationship,  must  be  made  out  by  legal  evidence.  No 
liability  as  principal  can  in  such  case  arise,  without 
clear  evidence  of  crime  by  a  recognized  or  identified 
agent.  Otherwise,  for  aught  that  appears,  the  criminal 
actor  may  be  acting  independently  of  any  advice,  or  under 
the  advice  and  instruction  of  another  person. 

By  way  of  illustrating  our  position:  Suppose  A  and  B, 
being  political  agitators,  and  desiring  to  bring  about  a 
revolution  in  the  conditions  of  society,  plan  and  agree  that 
B,  at  a  certain  time  and  place,  for  example,  some  public 
meeting,  shall  throw  a  bomb  for  the  purpose  of  destroying 
the  life  of  a  number  of  the  police.  Suppose,  further,  that 
C  and  D,  criminals,  and  thus  having  a  natural  antagonism 
to  the  police  force,  having  learned  of  the  proposed  meet- 
ing, enter  into  a  distinct  agreement  of  their  own  that  D 
shall  attend  said  meeting  and  throw  a  bomb  at  the  police 
with  a  view  to  committing  theft  and  robbery  in  the  con- 
fusion expected  to  ensue.  Before  A  could  be  prop- 
erly convicted  of  the  results  of  the  bomb  thrown  at  the 
time  and  place  arranged  for,  it  would  be  necessary  to 
show  that  the  bomb  was  thrown  by  B,  and  to  exclude 
the  hypothesis  of  its  being  thrown  by  C  or  D,  parties  to 
the  other  and  independent  conspiracy.  This  serves 
to  illustrate  our  point,  that  it  is  not  sufficient  to  show 
a  conspiracy,  if  such  were  shown,  broad  enough  in  its 
general  scope  to  include  the  particular  crime;  and  to 
supplement  that  proof  by  evidence  of  the  commission  of 
the  crime.  The  proof  must  go  further  and  show  legall}-, 
and  to  the  exclusion  of  every  reasonable  hypothesis, 
that  the  crime  was  committed  by  a  party  to  or  agent  of 
the  conspiracy  attempted  to  be  established;  that,  in  other 
words,  the  perpetrator  of  the  crime  must  be  identified  as 


^44 

an  agent  of  the  alleged  accessories,  before  they  can  be  held 
responsible  for  the  act.  But  how  can  it  be  claimed  that 
that  was  shown  in  the  case  at  bar  beyond  a  reasonable 
doubt,  if  the  identity  of  the  bomb-thrower  is  as  unknown 
as  that  of  the  man  in  the  moon? 

Commenting  upon  such  statutes  as  ours,  making  acces- 
sories indictable  and  punishable  as  principals,  Mr.  Bishop 
in  his  Criminal  Law,  Sec.  71  lays  down  the  rule  that 
statutes  like  these  "  do  not  supersede  the  necessity  of 
'■'■  proving  the  guilt  of  the  frincifal.'''' 

Wharton,  in  his  work  on  Crim.  Ev.,  9th  Ed.,  §  325  and 
note,  speaks  as  follows,  viz.: 

"  The  corf  us  delicti,  the  proof  of  which  is  essential  to 
"sustain  a  conviction,  consists  of  a  criminal  act;  and  tO' 
"  sustain  a  conviction  there  must  be  proof  of  the  defend- 
"  anth  guilty  agency  in  the  production  of  such  act." 

"  The  latter  feature,  namely,  criminal  agency,  is  often 
"  lost  sight  of,  but  is  as  assential  as  is  the  object  itself 
"  of  crime.  Acts,  in  some  shape,  are  essential  to  the 
"  corpus  delicti,  so  far  as  concerns  the  guilt  of  the  party 
"  accused.  A  may  have  designed  the  death  of  the  de- 
"  ceased,  j^et  if  that  death  has  been  caused  by  another, 
"  A,  no  matter  how  morally  guilty,  is  not  amenable  to  the 
"  penalties  of  the  law,  if  he  has  done  and  advised  nothing 
"  in  respect  to  the  death.     Gellius,  vii,  3." 

The  same  rule  is  recognized  and  applied  in  State  v. 
Crank,  13  S.  C.  Law  Reports,  86. 

Such  also  is  the  rule  distinct!}'  recognized  in  2  Bish- 
op's Criminal  Procedure,  sections  12  and  13,  where  the 
learned  author  speaks  as  follows:  "  Seeing  that  the  ac- 
"  cessory  cannot  be  guilty  unless  his  supposed  principal 
"  is  guilty  also,  the  former,  whether  indicted  with  the 
"  latter  or  separately,  can  be  convicted  only  on  evidence 
"  showing,   together   with    his    own    participation   in   the 


245 

<'  crime,  the  guill  of  his  frincifal.  *  *  *  But  by 
"  force  of  statutes  in  most  or  all  of  the  states,  the  acces- 
*'  scry  may  be  tried  even  in  advance  of  his  principal.  And 
"  whether  the  trial  is  in  advance  or  the  two  are  tried  to- 
"  gether,  there  being  already  no  conviction  of  the  princi- 
^'  pal,  Ihere  must  be  farol  evidence  frodaced  against  the 
"  accessory  of  the  frincifaPs  guiltP 

So  in  Holmes  v.  Commonwealth,  25  Penn.  St.,  221,  it  was 
ruled  that  where  an  accessory  was  indicted  the  guilt  of 
the  principal  must  be  averred,  and  the  evidence  must 
•establish  his  guilt  before  the  accessory  can   be   convicted. 

Starkie  on  Evidence,  volume  2,  part  2,  edition  1842, 
page  1,381,  states  the  law  as  follows:  "  A.  and  others  were 
"  indicted  for  feloniously  demolishing  the  house  of  B.  It 
•"  was  proved  that  A.  and  a  mob  of  persons  assembled  at 
^'  H.  A.  addressed  the  mob  in  violent  language,  and  led 
"  them  in  a  direction  towards  a  police  office,  about  a 
■<'  mile  from  H,  some  of  the  mob  from  time  to  time  leav- 
"  ing  and  others  joining.  At  the  police  office  the  mob 
"  broke  the  windows,  and  then  went  and  attacked  the 
"  house  of  B.,  and  set  it  on  fire,  A.  not  being  present  at 
■"  the  attack  on  the  house  nor  at  the  fire.  It  was  held 
"  that  on  this  state  of  facts  A.  ought  not  to  be  convicted 
^'  of  the  demolition,  as  it  did  not  sufficiently  appear  what 
■"  the  original  design  of  the  mob  at  H.  was,  nor  whether 
■"  any  of  the  mob  who  were  at  H.  were  the  persons  who 
■"  demolished  B.^s  house.'''' 

R.  V.  Howell,  9  C.  and  P.,  437. 

To  the  same  effect  see 

Roscoe's  Criminal  Ev.,  86  and  87. 

In  Fairlee  v.  Tlie  People,  11  111.,  5,  this  court,  speak- 
ing by  Mr.  Justice  Caton,  held  bad  for  uncertainty  an  in- 
dictment under  which  Fairlee  had  been  tried  and  sen- 
tenced  to    punishment  on    the   charge   of  murder.     The 


246 

indictment  set  out  that  Fairlee,  of  his  malice  aforethought, 
with  the  intent  to  murder  the  deceased  by  the  smallpox, 
inoculated  certain  third  parties  with  the  virus  of  such 
smallpox,  whereby  they  became  infected  with  the  diseases 
as  he  had  intended;  and  the  grand  jury  further  presented 
that  the  smallpox  with  which  these  third  parties  were  in- 
fected, was  a  fatal  and  infectious  disease,  b}'  means 
whereof  the  deceased  became  infected  with  the  disease 
whereof  he  died,  etc.  The  judgment  in  the  case  was 
reversed,  and  the  prisoner  ordered  to  be  discharged  on 
the  ground  that  for  aught  that  appeared  to  the  contrary 
the  deceased  might  have  contracted  the  disease  from  some 
source  other  than  through  the  procurement  and  instru- 
mentality of  the  accused. 

As  applicable  to  the  case  at  bar,  [because  the  same  cer- 
tainty of  proof  is  required  in  criminal  proceedings  that  is 
required  in  the  averment  of  the  offense  in  the  indictment], 
for  aught  that  appears  in  the  testimony  in  this  case  to 
the  contrary  Mathias  J.  Degan  may  have  been  killed  by 
a  bomb  thrown  by  some  third  party  wholly  and  utterly 
unknown  to,  and  in  the  act  altogether  uninfluenced  by 
the  plaintiffs  in  error  or  any  of  them.  And  as  the  instruc- 
tions tell  the  jury  that  the  identity  of  the  bomb-thrower 
need  not  be  established,  they  were  at  liberty  to  exclude 
the  hypothesis  that  he  may  have  been  a  person  uncon- 
nected with  the  plaintiffs  in  error. 

The  case  of  Ritzmanv.  The  Peo-pic,  no  111.,  362,  is 
not  an  authority  militating  in  the  least  against  the  position 
we  contend  for. 

There  the  evidence  showed  that  Ritzman  and  others, 
being  trespassers  upon  the  premises  of  the  deceased, 
were  requested  or  orderd  by  him  to  leave  such  premises, 
whereupon  the  parties  set  upon  the  deceased  and  in  the 
struggle  the  homicide  resulted.     It  was  admitted  that  the 


247 

death  resulted  from  a  blow  given  eilher  by  the  accused  or 
by  some  one  of  the  party  zvith  zvhom  the  accused  in  that 
case  'Mas  actually  farticifating  in  the  unlawful  act.  It  was 
urged  there  that  no  conviction  could  be  sustained  because 
the  evidence  did  not  show  which  one  of  the  co-trespassers 
did  the  killing;  and  with  reference  to  that  contention  the 
following  language  was  used  by  this  court: 

"And  yet  we  are  told  there  can  be  no  conviction  in  this 
"  case  because  the  evidence  does  not  show  beyond  a 
"  reasonable  doubt  the  very  hand  that  hurled  the  fatal 
"  missile,  which  sent  him  into  eternity  without  a  moment's 
"  warning.  So  far  as  the  accused  is  concerned,  under  the 
"  proofs  in  this  case,  we  think  it  wholly  immaterial  whether 
"  the  missile  in  question  was  thrown  by  the  hand  of  the 
"  accused  or  of  some  one  of  his  co-trespassers.  That  the 
"  defendant  was  present, — and  to  say  the  least  of  it  cn- 
"  couraging-  the  perpetration  of  the  oflense, — cannot  be 
"denied;  *  *  *  and  if  the  defendant  was  so  present 
"  encouraging  the  perpetration  of  the  offense,  it  is  hardly 
"  necessary  to  say  that,  by  the  express  provisions  of  our 
"  statute,  he  is  made  a  principal,  and  equally  guilty  with 
"  the  one  who  personally  gave  the  fatal  blow." 

In  this  case,  surely,  the  causul  relationship  between  the 
hand  that  did  the  act  and  the  defendant  was  established. 
He  was  present  and  encouraged  the  perpetration  of  the 
crime,  was  identified  with  the  criminal  actor  in  the  very 
act  itself.  This  case  does  not  apply  to  the  facts  assumed 
in  the  erroneous  instructions  complained  of,  namely,  that 
the  bomb-thrower  is  unidentified,  and  that  the  plaintiffs  in 
error  were  not  present  and  encouraging. 

In  the  Ritzman  case  there  was  an  absolute  identifica- 
tion, or,  if  you  please,  positive  proof,  that  the  one  who 
did  strike  the  fatal  blow  was  a  cc-actor  in  the  trespass 
with   the  party  accused,  or  the   accused    himself;  and   if 


248 

the  accused  did  not  in  fact  strike  the  fatal  blow  he  was 
yet  actively  co-operating  with  the  man  who  did  so  inflict 
the  mortal  injury.  For  the  proof  in  tiie  Ritzman  case 
showed  that  Ritzman  joined  in  the  assault,  and  partici- 
pated actively  in  the  combat.  Alike  in  the  case  of  Bren- 
min  V.  The  People,  15  111.,  511,  and  in  the  Ritzman  case, 
as  we  understand,  the  defendants  being  present  and  par- 
ticipating in  the  felony,  they  were  principals  therein. 
Wiih  the  doctrine  of  this  case  we  have  absolutely  no 
contention  whatever.  But  it  does  not  apply  to  the  case 
at  bar. 


II.       THE    INSTRUCTIONS    WERE    AT    VARIANCE    WITH    THE 
PROOF    INTRODUCED    BY    THE    STATE. 

As  to  the  general  theory  of  the  instructions  given  in 
behalf  of  the  people,  there  was  an  entire  departure  from 
the  case  attempted  to  be  made  by  the  state's  testimony. 

The  indictment  which  involved  the  plaintiffs  in  error, 
together  with  William  Seliger  and  Rudolph  Schnaubelt, 
as  co-defendants,  charged  the  act  of  throwing  the  bomb 
upon  each  of  the  plaintifls  in  error,  in  concert  with  others, 
and  then  in  another  series  of  counts  charged  that  the 
criminal  act  was  committed  by  Rudolph  Schnaubelt,  act- 
ing under  the  advice  and  with  the  aid  and  encouragement 
or  by  the  procurement  of  the  plaintiffs  in  error.  In  sup- 
port of  the  charge  contained  in  this  indictment,  the  state 
introduced  positive  and  direct  evidence  that  the  Hay- 
market  bomb  was  thrown  in  fact  by  Rudolph  Schnaubelt. 

As  to  the  plaintiffs  in  error,  the  teiitimony  presented  by 
the  state  left  the  case  as  advice  and  cncoiiragcinciU  by  litem 
to  Rudolph  Schnaubelt. 

This  was  the  case  that  the  plaintifls  in  error  were 
called  upon  to  meet  when  the  state  rested  in  the  presenta- 


249 

tion  of  its  evidence  to  the  jury.  Tliis  was  the  charge 
with  which  they  were  confronted,  this  the  evidence  they 
were  to  rebut. 

There  can  be  no  question  whatever  that  under  the  in- 
<iictment  it  would  have  been  incompetent  for  the  state  to 
have  proved  or  attempted  to  prove,  for  example,  that  the 
bomb  was  thrown  by  John  Smith  or  Thomas  Jones,  un- 
less they  had  shown  that  such  bomb  thrower  was  to  the 
grand  jury  unknown,  and  that  his  identity  had  been  sub- 
sequently established.  The  rule  of  law  is  conclusively 
established,  that  if  the  name  of  the  pridcipal  criminal  is 
known  to  the  grand  jury  it  must  be  stated  in  the  indict- 
ment, that  the  defendants  may  know  the  charge  which 
they  have  to  confront;  and  that  if  it  appears  in  the  course 
of  the  trial  that  the  name  of  the  principal  criminal  was  in 
fact  known  to  the  grand  jury,  and  the  indictment  charged 
the  principal  as  unknown,  such  indictment  will  be  quashed. 

In  this  case  the  indictment  charged  that  Rudolph 
Schnaubelt  threw  the  bomb,  and  there  was  direct  and 
positive  testimony  introduced  by  the  state  that  said 
Schnaubelt  was  in  fact  the  bomb  thrower.  Such  evi- 
■dence,  if  believed,  excluded  absolutely  the  hypothesis  that 
anyone  other  than  Schnaubelt  threw  the  bomb.  There 
was  absolutely  no  evidence  introduced  by  the  state  that 
the  bomb  was  thrown  by  an  unknown,  unidentified  man. 
Not  one  count  in  the  indictment,  except  the  two  charging 
Rudolph  Schnaubelt  with  having  thrown  the  bomb  and 
the  plaintiffs  in  error  with  being  accessories  thereto,  were 
supported,  or  even  attempted  to  be  supported,  by  the  state 
in  its  evidence.  Our  claim  is  that  in  this  state  of  the 
■case  the  state  was  bound  to  ask  of  the  jury  a  conviction 
upon  that  theory,  and  upon  none  other.  It  had  chosen  to 
present  to  the  jury  testimony  which,  if  credible,  estab- 
lished one  particular  charge  of  the  indictment,  and  to  rest 


250 

upon  that  testimony,  and  the  plaintifts  in  error  were  called 
upon  to  meet  only  the  case  made  out  by  the  state,  and  not 
one  of  which  they  were  not  apprised  in  anj"  manner  by 
the  state's  evidence. 

Nor  is  this  rule,  we  insist,  affected  in  the  least  by  the 
fact  that  in  certain  other  counts  the  plaintiffs  in  error 
were  charged  as  accessories  to  an  unknown  bomb-thrower. 
The  state  did  not  attempt  to  sustain  that  charge;  and  not 
having  introduced  evidence  in  support  of  that  charge, 
was  not  entitled  to  ask  a  conviction  upon  that  theory. 
The  instructions  must  follozf  the  proofs.  The  state  cotihf 
have  no  right  to  ask  instructions  of  the  court  that  were  alto- 
gether without  support  from  the  evidence  in  their  case, 
altogether  out  of  havjnony  with  their  own  testimony.  The 
case  may  be  likened  to  a  civil  action  in  assumpsit,  with 
a  special  count  upon  a  promissory  note  and  the  common 
counts.  Suppose,  in  such  a  case,  the  plaintiff  introduced 
the  promissory  note  described  in  the  declaration,  and 
rested  there.  Suppose  that  the  defendant  then  intro- 
duced evidence  tending  to  show  that  that  note  was  a  for- 
gery, and  upon  that  testimony  the  case  was  submitted  to 
the  jury;  would  not  the  plaintiff  in  the  action  be  re- 
quired to  recover,  if  at  all,  upon  the  theory  of  the  gen- 
uineness of  the  note,  and  for  the  note  alone?  Could  ar> 
instruction  be  given  on  his  behalf  upon  the  theory  of  some 
general  indebtedness  under  his  common  counts?  Would 
not  his  instructions  have  to  conform  with  his  proofs,  and 
go  upon  the  hypothesis  supported  by  his  testimony? 

And  if  this  is  true  in  a  civil  action,  can  a  different  rule 
be  sustained  in  reference  to  criminal  matters,  and  espe- 
cially in  capital  cases?  Here  was  a  special  count  charging 
that  Schnaubelt  threw  the  bomb,  the  plaintiffs  in  error 
being  accessories  to  that  act,  and  only  this  special  count 
attempted  to  be  supported  by  the  testimony  offered  in 
behalf  of  the  state. 


251 

But  so  completely,  overwhelming!}'  and  absolutely  was 
this  case  met  b)-  the  defendants — so  conclusively  was  the 
falsehood  of  the  state's  testimony  demonstrated,  that  the 
state  in  its  instructions  abandoned  its  own  case.  Not  a 
single  instrtiction  on  behalf  of  the  State  presented  to  the 
jury  the  hypothesis  of  accessoryship  to  the  throwing  of  the 
bomb  by  Schnaubelt.  Dropping  their  special  count,  the 
state  attempted  to  recover  under  their  common  counts. 
We  maintain  that  the  instructions  of  the  court  in  behalf 
of  the  state,  inasmuch  as  they  departed  from  the  case 
which  the  state  had  attempted  to  make,  and  upon  which 
the  state  rested,  were  altogether  erroneous. 

In  support  of  the  position  above  suggested  we  cite 
briefly  the  following  authorities: 

"  An  indictment  will  be  bad  against  an  accessory, 
"  statmg  the  principal  to  be  unknown  to  the  grand  jury 
"  contrary  to  the  truth,  and  the  judge  will  direct  an  ac- 
"  quittal." 

Wharton's  Criminal  PI.  &  Pr.,  8th  ed.. 
Section  112;  citing  in  support  of  the  text, 
3  Campbell,  264,  265 ;  2  East's  P.  C,  781. 

The  same  author  says  in  section  104  of  the  same  work: 
"  A  known  party  cannot  be  indicted  as  unknown." 

Citing  Wharton's  Cr.  Ev.,  8th  ed.,  §97; 
Geiger  v.  Steele,  5  Iowa,  484. 

That  evidence  cannot  be  admitted  to  prove  accessory- 
ship  to  a  felony  committed  by  a  person  other  than  the 
one  na77ied  iri  the  indictment,  where  the  indictment  is 
special  and  purports  to  give  the  name  of  ihe  principal 
felon,  is  also  well  settled  by  authority. 

See  2  East's  Crown  Law,  651,  781. 

In  Simmons  v.  State,  4th  Georgia,  465,  it  was  expressly- 
held    that    where  an  indictment   charged    the    defendant 


with  an  offense,  or  with  being  an  accessory  to  a  felonj', 
committed  by  a  party  specially  named,  it  was  necessary 
to  prove  that  the  felony  was  committed  by  that  individual 

So  it  was  held  in  Moore  v.  State,  65  Indiana,  213, 
that  the  proof  must  follow  the  indictment,  and  that  if  the 
indictment  charged  accessoryship  to  an  offense  committed 
"with  '■persons''  whose  names  are  unknown  to  the  grand 
"jury,"  such  indictment  was  not  sustained  by  proof  of 
commission  of  the  offense  "  with  a  person  whose  name 
"  to  the  grand  jury  was  unknown."  It  was  said  b}'  the 
Supreme  court  of  Indiana,  in  that  case,  that  the  descrip- 
tion in  the  indictment  7nnst  be  literally  proved,  in  order 
that  the  record  may  be  a  sufficient  bar  to  a  subsequent 
prosecution  for  the  same  offense.  The  question  there 
arose  upon  the  instructions  under  the  indictment,  which 
instructions  held  that  it  was  sufficient  to  sustain  the  in- 
dictment to  show  by  the  proofs  the  commission  of  the 
alleged  offense  with  some  person  whose  name  was  un- 
known. For  this  error  in  the  instruction  the  conviction 
was  set  aside. 

See  also  Wharton's  Criminal  Evidence,  9th  edition, 
section  97,  where  it  is  said:  "  When  a  third  person  is  de- 
"  scribed  as  '  a  person  to  the  grand  jurors  unknown,'  and 
"it  turn  out  he  was  known  to  the  grand  jurors,  the 
"variance  is  fatal.  *  ^  *  A '■  person  tmknozi'n'' must 
'■•■be  individuated  as  a  specific  person,  though  his  name 
"  may  not  be  ascertainable ^ 

In  Regina  v.  Stroud,  2  Moody,  C.  C,  *27o,  there  was 
an  indictment  against  the  prisoner  for  the  murder  of  her 
infant  child.  In  the  first  count  of  the  indictment  the  child 
was  described  as  Harriett  Stroud.  In  the  second  count  it 
was  described  as  a  female  infant  of  tender  age,  whose 
name  is  to  the  jurors  unknown.  It  appeared  b}'  the  evi- 
dence that  the  prisoner,  being  a  single  woman,  gave  birth 


253 

to  a  female  child;  that  the  child  was  called  tiarriett. 
The  child  was  baptized  by  the  name  of  Harriett  only, 
not  Harriett  Stroud,  and  there  was  no  evidence  showing 
it  had  ever  been  called  by  any  other  name  except  Harriett. 
The  prisoner  drowned  the  child.  The  jury  found  the 
prisoner  guilty.  The  judge  passed  sentence  of  death 
upon  her. 

A  doubt  was  afterwards  suggested,  whether  the  con- 
viction was  right.  It  would  seem,  on  the  authority  of 
Rex  V.  Waters,  i  Mood}-,  457,  that  she  could  not  be  con- 
victed on  the  first  count,  and  as  the  child  was  certainly 
known  by  the  name  of  Harriett,  it  might  be  doubted 
whether  the  second  count  would  warrant  conviction  for 
the  murder  of  a  child  whose  name  is  to  the  jurors 
unknown,  and  whether  there  ought  not  to  have  been 
a  count  for  the  murder  of  a  child  named  Harriett.  The 
execution  of  the  sentence  had  been  respited  in  order  that 
the  opinion  of  the  judges  might  be  obtained  on  the  point. 
This  case  was  considered  at  a  meeting  of  the  judges  in 
Michaelmas  term  in  1842,  and  they  held  the  conviction 
wrong.  The  proper  description  would  have  been  Har- 
riett, the  base-born  child  of  the  prisoner,  and  the  want 
of  description  is  only  excused  when  the  name  cannot  be 
known. 

Though  this  case  applies  to  the  name  of  the  victim  of 
the  crime,  still  it  shows  the  principle  that  the  proof  must 
strictly  conform  to  the  indictment.  As  applied  to  the  case 
at  bar,  all  counts  in  the  indictment  other  than  those 
charging  accessoryship  to  Rudolph  Schitaubelt  as  princi- 
pal, could  not  form  the  basis  of  conviction,  because  at 
variance  with  the  proof,  and  therefore  could  not  be  made 
the  basis  of  the  theory  of  the  instructions. 

In  Rex  v.  Russell  and  Ryan,  p.  489,  it  was  decided,  if 
the  name  of  a  prisoner  is  unknown,  and  he  refuses  to   dis- 


254 

close  it,  an  indictment  against  him  as  a  person  whose 
name  is  to  the  jury  unknown,  but  who  is  the  prisoner 
brought  before  the  jurors  by  the  keeper  of  the  prison, 
would  be  good,,  but  it  would  not  be  sufficient  to  base  an 
indictment  against  him  as  a  person  to  the  jurors  unknown, 
without  something  to  ascertain  who  the  grand  jury  meant 
to  designate. 

See  also  Blodgctt  v.  State,  3d  Indiana,  403. 

In  Russell's  Law  of  Crimes,  volume  2,  page  297,  it  is 
said:  '^'-  Rex  v.  Robinson,  the  averment  in  the  indictment 
"  always  is  '  to  the  jurors  aforesaid,  /.  e.,  grand  jury  un- 
'i  known;'  and  in  Rex  v.  Cory,  Gloucester  S.  PR.  1832, 
"  upon  it  being  stated  in  argument  that  it  had  been  held 
"  that  if  it  were  alleged  that  property  was  stolen  by  a 
"  person  unkfiowu,  and  it  was  proved  at  the  trial  that  the 
"  person  was  known,  the  prisoner  must  be  acquitted." 

LiTTLEDALE,  judge,  says :  "  That  case  has  been  decided, 
"  and  it  is  subject  to  some  doubt.  The  question  is, 
<♦  whether  the  person  is  known  to  the  grand  jury.  It 
"will  be  difficult  to  prove  that  he  was  so  known;  and 
"  unless  he  was  known  to  the  grand  jury  I  should  have 
"  doubt  about  that  case.  If  the  case  should  occur  where 
"  the  witnesses  who  went  before  the  grand  jury  were 
"  wholly  ignorant  of  the  parties  said  to  be  unknown,  and  it 
"  turned  out  by  other  evidence,  e.  g.,  by  a  witness  called 
"  for  the  prisoner,  that  the  party  was  known,  it  would 
"  deserve  consideration  whether  the  prisoner  would 
"  thereby  be  entitled  to  be  acquitted." 

In  Rex  V.  Walker,  3  Campbell's  Reports,  page  264, 
there  was  an  indictment  against  the  prisoner  as  accessory 
before  the  fact  to  a  larceny.  The  indictment  charged 
that  a  certain  person,  to  the  jurors  unknown,  feloniousl}' 
stole,  took  and  carried  away  six  bushels  of  wheat. 

The  grand  jury  had  found   a  bill  upon  the  evidence  of 


255 

Charles  Ives,  who  had  acknowledged  that  he  had  stolen 
the  wheat.  It  was  now  proposed  to  call  him  as  a  witness 
to  establish  the  guilt  of  the  prisoner;  but  the  fact  being 
opened  by  the  prosecution,  the  judge  interposed  and  di- 
rected an  acquittal.  He  said  he  considered  the  indict- 
ment wrong  in  stating  that  the  wheat  had  been  stolen  by 
«  ferson  unknown,  and  asked  how  the  person  who  was  the 
principal  felon  could  be  alleged  to  be  unknown  to  the 
jurors,  when  they  had  him  before  them  and  his  name  was 
■written  on  the  back  of  the  bill. 

See  fully  Russell  on  Crimes,  ubi  supra. 


III.     Instructions    based    upon   hypotheses  unwar- 
ranted  BY   THE   EVIDENCE. 

Instruction  5,  given  on  behalf  of  the  people  (i  A.,  7; 
O,  3)  presents  to  the  jury  substantially  the  hypothesis 
that  the  jury  might  find  the  plaintiffs  in  error  guilt}'  of 
murder,  "  although  the  jury  may  further  "  believe  from 
■"  the  evidence  that  the  time  and  place  for  the  bringing 
■"  about  of  such  revolution,  or  the  destruction  of  such 
"  authorities,  had  not  been  definitely  agreed  upon  by  the 
■"  conspirators,  but  was  left  to  them  and  the  exigencies  of 
"  time,  or  to  the  judgment  of  any  of  the  co-conspirators.'''' 
Our  objection  to  this  part  of  the  instruction  is  that 
there  was  no  evidence  in  the  record  to  support  this 
hypothesis.  We  have  heretofore  (pp.  146-149)  pre- 
sented to  the  court  our  views  upon  this  point  quite 
■fully,  and  it  may  suffice  here  to  repeat  that  there  is  ab- 
solutely no  evidence  in  this  record  to  show  that  under 
any  agreement,  understanding  or  conspiracy  to  which,  it 
is  claimed  on  the  part  of  the  state,  the  plaintiffs  in  error, 
or  any  of  them,  were  parties,  was  there  any  provision, 
agreement  or  understanding  that  the   time   and   place  for 


256 

the  "  bringing  about  of  revolution  or  tiie  destruction  of 
"  the  authorities  was  left  to  the  exigencies  of  time  or  to 
"  the  judgment  of  any  of  the  co-conspirators.''''  As  before 
suggested  by  us,  there  are  perhaps  in  Bakunin's  article 
and  in  Most's  book,  and  possibly  in  some  other  of  the 
literature  introduced,  suggestions  by  some  of  the  writers 
to  the  efiect  that  revolutionists  ought  themselves  to  pro- 
ceed with  their  own  enterprises  without  involving  therein 
any  more  of  their  fellow  revolutionists  than  seems  ab- 
solutely necessary.  But  this  is  as  far  as  possible  from 
evidence  supporting  a  theory  that  there  was  a  general 
agreement  by  plaintiffs  in  error  that  tlie  revolution  was  to 
be  brought  on  at  the  caprice,  or  upon  the  judgment,  of 
any  individual  member  of  the  conspiracy-,  as  to  when  the 
time  or  the  exigency  had  arisen  for  striking  the  deter- 
minative blow.  In  this  particular  this  instruction  is  ab- 
solutely vicious,  and  was  calculated  in  the  highest  degree 
to  work  prejudice  to  the  plaintiffs  in  error. 


IV.     Mere   general    advice    does   not    constitute 

ACCESSORYSHIP. 

We  come  now  to  a  consideration  of  the  most  impor- 
tant, in  our  view  perhaps  the  most  vicious,  of  all  the 
instructions  asked  and  given  in  behalf  of  the  people,  to 
wit:  instruction  5|  (i  A.,  8;  O,  4),  which   is  as  follows: 

"If  these  defendants,  or  anj-  two  or  more  of  them,  con- 
"  spired  together  with  or  not  with  any  other  person  or 
"  persons  to  excite  the  people  or  classes  of  the  people  of 
"  this  city  to  sedftion,  tumult  and  riot,  to  use  deadh' 
"  weapons  against  and  take  the  lives  of  other  persons,  as 
"  a  means  to  carry  their  designs  and  purposes  into  effect, 
"  and  in  pursuance  of  such  conspiracy,  and  in  furtherance 
"  of  its  objects,  any  of  the  persons  so  conspiring  publicly 


257 

"  by  print  or  speech  advised  or  encouraged  the  commis- 
"  sion  of  murder  without  designating  time,  place  or  occa- 
"  sion  at  which  it  should  be  done,  and  in  pursuance  of, 
"  and  induced  by  such  advice  or  encouragement,  murder 
"  was  committed,  then  all  of  such  conspirators  are  guilty 
"  of  such  murder,  whether  the  person  who  perpetrated  such 
"  murder  can  be  identified  or  not.  If  such  murder  was  com- 
"  mitted  in  pursuance  of  such  advice  or  encouragement,  and 
"  was  induced  thereby,  it  does  not  matter  what  change  if 
"  any,  in  the  order  or  condition  of  society,  or  what,  if  any, 
"  advantage  to  themselves  or  others,  the  conspirators  pro- 
"  posed  as  the  result  of  their  conspiracy,  nor  does  it  matter 
"  whether  such  advice  and  encouragement  had  been  fre- 
"  quent  and  long-continued  or  not,  except  in  determining 
"  whether  the  perpetrator  was  or  was  not  acting  in  pur- 
"  suance  of  such  advice  or  encouragement,  and  was  or 
"  was  not  induced  thereb)-  to  commit  the  murder.  If 
"  there  was  such  conspiracy  as  in  this  instruction  is  recited, 
"  such  advice  or  encouragement  was  given,  and  murder 
"  committed  in  pursuance  of  and  induced  thereby,  then  all 
"  such  conspirators  are  guilty  of  murder.  Nor  does  it 
"  matter,  if  there  was  such  a  conspiracy,  how  impractica- 
"  ble  or  impossible  of  success  its  end  and  aims  were,  nor 
"  how  foolish  or  ill-arranged  were  the  plans  for  its  execu- 
"tion,  except  as  bearing  upon  the  question  whether  there 
"was  or  was  not  such  conspirac3^" 

The  only  act  on  the  fart  of  any  of  the  flaintiffs  in  error 
required  to  be  found  under  this  instruction  by  the  ftiry  is 
the  mere  matter  of  consfiring  together  or  with  others  to 
excite  the  people  or  classes  of  the  people  to  riot,  tumult  and 
sedition,  and  to  the  use  of  deadly  weapons  against,  and 
taking  the  lives  of  other  persons. 

Here  is  supposed  a  conspiracy,  not  to  commit  murder, 
not  to  do  any  act  of  violence  out  of  which    murder  might 


258 

Vesult,  but  a  conspiracy  to  excite,  a  conspiracy  to  solicit 
crime.  To  exxite  the  people  to  deeds  of  violence  is  the 
'only  and  final  object  of  the  conspiracy  supposed  in  this 
instruction.  The  law  is,  that  each  member  of  an  unlaw- 
ful conspiracy  is  responsible  for  all  the  acts  done  by  one 
of  the  conspirators  in  furtherance  of  the  common  design, 
or,  as  applied  to  the  conspiracy  supposed  in  instruction 
5^,  the  act  of  soliciting  crime  by  print  or  speech  by  one 
of  the  parties  to  that  combination.  If  the  mere  fact  of 
'soliciting  crime  by  print  or  speech  were  an  indictable 
offense  [and  it  may,  perhaps,  constitute  a  common  law 
libel  or  a  misdemeanor],  then  all  of  the  conspirators 
would  be  guilty  as  accessories  to  tliat  offense.  But  the 
instruction  does  not  stop  there.  It  goes  on  to  say  that  if 
murder  was  committed  in  pursuance  of  and  "  induced''''  by 
such  solicitation  of  crime,  then  all  conspirators  are  guilty 
of  murder. 

"If  murder  was  committed,"  by  whom?  The  instruc- 
tion is  silent  about  that.  This  alone  would  make  it 
vicious  for  uncertainty.  But  apart  from  that,  the  the 
ory  of  this  instruction  is  that  if  anybody,  "induced"  by 
such  advice,  commits  murder,  then  the  parties  to  the 
■"  conspiracy  to  excite^''  are  accessories  to  such  murder.  In 
other  words,  they  are  responsible  as  accessories  to  the  act 
of  one  -^vho  is  not  a  member  of  their  conspiracy,  acces- 
sories to  an  act  which  goes  beyond  the  common  design, 
which  common  design,  under  the  theory  of  this  instruc- 
tion, is  "  excitement  of  the  people  to  crime,"  and  not  the 
commission  of  any  act  of  violence. 

"  If  murder  was  committed,"  against  whom,  where, 
when?  The  instruction  will  be  searched  in  vain  from  the 
first  to  the  last  word,  for  any  reference  to  the  charge  in 
the  indictment.  The  name  of  Degan  is  not  mentioned, 
the  instruction  does  not  speak  about  a  murder  committed 


259 

in  Cook  county,  on  the  4th  of  May,  nor  is  the  jury  re- 
quired to  find  that  murder  was  committed  by  means  of  a 
bomb.  But  it  says:  "If  murder  was  committed,  then  all 
"  of  such  conspirators  are  guilty  of  such  murder." 

This  instruction  was  bad  by  reason  of  its  stating  an 
abstract  principle  of  law,  erroneous  in  itself,  and  not  based 
upon  any  evidence  legitimately  before  the  jurj'.  That  it 
was  calculated  to  mislead  is  apparent. 

Coughlin  V.  The  People,  18  111.,  266. 

But,  beyond  this,  instruction  5^  sa3's  that  if  "  any  of 
"  the  persons  so  conspiring  publicly,  by  print  or  speech, 
"  advised  or  encouraged  the  commission  of  murder,  with- 
"  out  designating  time,  place  or  occasion  at  which  it 
"  should  be  done,  and  in  pursuance  of  and  induced  by  such 
■*'  advice  or  encouragement  murder  was  committed,  then 
"  all  of  such  conspirators  are  guilty  of  such  murder." 

It  will  be  observed  that  under  this  instruction  it  was  not 
necessary  for  the  jury  to  find  that  any  of  the  plaintiffs  in 
error  advised  or  encouraged  the  commission  of  murder  in 
order  to  hold  them  guilty;  but  if  any  other  man,  not  one  of 
the  plaintiffs  in  error,  but  who  was  a  party  to  the  conspiracy 
to  excite  to  crime,  made  public  speeches  advising  or  en- 
couraging the  commission  of  murder,  and  murder  was 
committed,  induced  by  such  advice,  then  all  of  the  con- 
spirators, including  the  plaintiffs  in  error,  are  to  be  found 
guilty. 

But  the  instruction  now  under  consideration  is,  in  our 
judgment,  subject  to  still  further  special  criticism.  It  is 
therein  said:  "  If  any  of  the  persons  so  conspiring  pub- 
"  licly,  by  print  or  speech  advised  or  encouraged  the  com- 
"  mission  of  murder,  without  designating  time,  place  or 
"  occasion  at  which  it  should  be  done,  and  in  pursuance  of, 
"  and  /W«c^(/ by  such  advice  or  encouragement  murder 
"  was  committed,  then  all  of  such  conspirators  are  guilty," 
etc. 


26o 

This  assumes  that  there  is,  in  lazv,  such  a  thing  as 
advice  to  murder  in  the  abstract.  As  we  said  in  another 
connection,  a  man  might  cr}'  out  in  the  pubHc  streets; 
"  Kill,  kill,  murder,  murder,"  by  the  day  and  by  the  hour, 
and  would  not  advise  murder  in  contemplation  of  law. 
Unless  he  designates  the  victim,  the  means,  the  manner, 
time  or  place,  he  has  not  done  sufficient  by  his  outcries 
alone  to  become  amenable  to  the  law  as  an  accessory 
before  the  fact  to  the  crime  of  murder. 

Again,  from  the  structure  of  this  part  of  the  instruction 
it  is  evident  that  the  jury  were  left  free  to  judge  as  to  the 
nature  of  supposed  public  advice,  without  any  instruction 
as  to  what  would  constitute  advice  to  commit  murder. 
Our  point  is  that  the  advice  should,  in  order  to  constitute 
accessoryship,  be  advice  to  the  commission  of  such  act  or 
acts  as  would  in  law  constitute  murder,  and  that  the  ex- 
press elimination  in  this  part  of  the  charge  of  any  con- 
sideration by  the  jury  of  time,  place  or  occasion,  as  desig- 
nated for  the  proposed  offense  in  the  supposed  advice,, 
renders  the  charge  vicious  for  uncertainty. 

But  this  vice  of  the  instruction  was  intensified  by  the 
suggestion  of  inducement  under  such  advice.  The  statute 
does  not  make  a  man  liable  for  a  crime  induced  by  what 
he  maj'  have  said,  but  only  for  a  crime  advised  directly 
by  him. 

For  example.  I  may  advise  men  to  kill  a  particular 
class  of  people,  as  Chinese,  or  Pinkerton  detectives,  or 
Mormons.  As  a  result  of  such  advice,  or  its  oft  repeti- 
tion, I  may  induce  in  the  minds  of  my  hearers  a  light 
regard  for  life,  a  disposition  to  homicide  generally,  so  that 
induced  by  such  advice  a  murder  may  be  committed  to- 
tally different  from  any  advised.  Will  it  be  contended 
that  in  such  a  case  I  would  be  responsible  for  the  murder 
thus  induced  and  committed? 


Again,  this  instruction  is  vicious  because  it  does  not 
require  the  jury  to  find  that  the  advice  to  commit  murder 
was  directed  and  addressed  to  the  man  who  committed  it. 
This  is  absurd.  Suppose  A.,  a  physician,  in  his  consulta- 
tion room  advises  a  woman  to  commit  abortion  and  tells 
her  the  means  by  which  to  accomplish  it.  Suppose  fur- 
ther that  in  the  ante-room,  severed  by  a  closed  door 
from  the  consultation  room,  there  is  waiting,  accidental!}', 
another  woman,  sent  on  an  errand  to  the  doctor.  She  is 
pregnant.  She  is  unmarried.  She  overhears  the  advice 
given  by  the  physician  to  the  woman  inside.  It  prompts 
to  her  the  suggestion  that  there  would  be  a  chance  to 
conceal  her  shame.  "  Pursuant  to  the  advice  "  given  by 
the  doctor  to  the  other  lady  and  "  induce'd "  by  it,  she 
goes  off  and  commits  the  crime  of  abortion  without  ever 
seeing  or  talking  to  the  doctor.  Is  the  doctor  an  accessory 
before  the  fact  to  her  crime?  The  suggestion  is  prepos- 
terous. 

Considering  the  various  vices  of  instruction  5J,  above 
criticized,  it  will  appear  that  it  admits  of  such  a  conse- 
quence as  the  following: 

If,  as  supposed  by  this  instruction  the  plaintiffs  in 
error  were  parties  to  a  conspiracy  to  excite  the  people  to 
tumult,  to  the  use  of  deadly  weapons  for  the  taking 
of  human  life,  etc.,  and  if  in  supposed  furtherance  of  this 
■conspiracy  some  unknown  member  of  this  band  of  con- 
spirators (not  one  of  the  parties  accused)  published  an 
article  in  general  terms  encouraging  and  advising  assassin- 
ation, without  designating  time,  place  or  occasion,  or 
naming  any  victim  or  class  of  victims,  and  if  "  in  pursuance 
"of  this  general  advice"  and  "induced"  thereby  some 
nnknozvn  person  had  murdered  a  policeman  in  London, 
in  the  course  of  a  private  altercation,  all  of  the  parties 
to  the  original  conspiracy  would  be  guilty  of  the  London 


262 

For  observe,  the  instruction  makes  no  limitation  as  to 
where  the  supposed  murder  might  be  committed;  nor  at 
what  time,  near  or  remote;  nor  on  what  occasion,  a  pubhc 
meeting  or  a  private  brawl;  nor  who  should  be  the  victim, 
or  even  class  of  victims.  Here  would  be  liability  for 
a  crime  never  dreamed  of  by  the  original  conspiracy,  nor 
within  its  scope;  for  it  is  not  said  in  the  instruction  that 
the  murder  done  mnst  be  in  pursuance  of  and  induced  by 
the  original  conspiracy ;  but  only  in  pursuance  of  and  in- 
duced by  the  public  general  speech  or  writing  of  some  one 
of  the  supposed  conspirators,  which  speech  or  writing  is 
made  in  furtherance  of  a  conspiracy  "  to  excite  the  people 
"  or  classes  of  the  people  of  this  city  to  sedition,  tumult 
"  and  riot,  to'  use  deadly  weapons  against  and  take  the 
"  lives  of  other  persons,  as  a  means  to  carry  their  designs 
"  and  purposes  into  effect." 

Isn't  this  a  trifle  remote?  Isn't  it  importing  into  crim- 
inal law  the  exploded  doctrine  of  "consequential"  liability? 
Is  it  not  an  instruction  in  utter  disregard  of  the  maxim 
"  Causa  -proxima  non  rcniota  sfectaimir  "  ?  Is  it  not  the 
undue  development  of  what  may  be  termed  a  doctrine  of 
constructive  crime? 

In  this  instruction  5^  again,  the  false  proposition  is 
repeated,  that  it  is  unnecessary  to  identify  in  any  manner 
the  bomb-thrower,  if  the  jury  imagine  or  conclude  that 
it  was  thrown  in  pursuance  of  such  advice  or  encourage- 
ment, and  was  induced  thereby.  How  is  it  possible 
legally  to  conclude  that  an  unknown  party,  absolutely 
unidentified,  and  with  no  evidence  connecting  him  with 
the  accused,  ever  heard  their  speeches,  read  their  writ- 
ings, or  was  in  any  relationship  to  them  subjecting  him 
to  the  slightest  influence  by  them — how  is  it  possible, 
legally  to  conclude  that  the  act  of  such  a  man  was 
done  in  pursuance  of  such  advice  or  encouragement, 
and  was   induced  thereby?      Or,  to   put  it   in    the    Ian- 


263 

guage  of  Mr.  Wharton  in  his  Ciim.  Law,  Vol.  i  §i79."- 
"  What  human  judge  can  determine  that  there  is  such  a. 
"  necessary  connection  between  one  man's  advice  and  an- 
"  other  man's  action  as  to  make  the  former  the  cause  of 
"  the  latter?"  No  legal  relationship  under  this  instruction 
is  required  to  be  established  by  the  evidence,  but  the  jury 
were  left  absolutely  free  to  g-uess  or  conclude  upon  any 
basis  satisfactor}'  to  them  "  as  men  "  [vid :  Instruction  13)  > 
that  the  unknown  bomb- thrower  at  the  Haymarket  was 
influenced  in  his  act,  was  incited  to  his  crime,  was  en- 
couraged in  his  evil  deed,  by  the  plaintiffs  in  error. 

When  once  the  theory  that  Rudolph  Schnaubelt  threw 
the  bomb  was  abandoned,  there  was  no  evidence  which, 
warranted  the  hypothesis  assumed  in  the  instruction  that 
the  unidentified  bomb-thrower  was  in  fact  an  associate  in, 
their  purposes  and  an  instrument  of  their  designs,  or  even 
a  disciple  of  one  of  the  band  of  conspirators  supposed 
in  instruction  5^. 

We  beg  to  cite  here  again  from  Starkie  on  Evidence,, 
volume  2,  part  2,  edition  1842,  page  1381,  who  states  the 
law  as  follows:  "A.  and  others  were  indicted  for  feloni- 
"  ously  demolishing  the  house  of  B.  It  was  proved  that 
"  A.  and  a  mob  of  persons  assembled  at  H.  A.  addressed 
"  the  mob  in  violent  language,  and  led  them  in  a  direction 
"  towards  a  police  office,  about  a  mile  from  H.,  some  of 
"  the  mob  from  time  to  time  leaving  and  others  joining, 
"  At  the  police  office  the  mob  broke  the  windows,  and 
"  then  went  and  attacked  the  house  of  B.,  and  set  it  oi\ 
"  fire,  A.  not  being  present  at  the  attack  on  the  house  n  )r 
"  at  the  fire.  It  was  held  that  on  this  state  of  facts  A, 
"  ought  not  to  be  convicted  of  the  demolition,  as  it  did  not 
"  sufficiently  appear  what  the  original  design  of  the  mob 
"  at  H.  was,  nor  whether  any  of  the  mob  who  zvere  at  H^ 
"  were  the  persons  zvho  demolished  Bh  house." 
R.  V.  Howell,  9  C.  and  P.,  437. 


264 

Wharton  in  his  Criminal  Law,  9th  edition,  volume  i, 
section  226,  note  entitled  "Modes  of  Instigation,"  says: 
"  Counseling,  to  come  zip  to  the  definition,  must  be  special. 
"  Mere  general  counsel,  for  instance,  that  all  property 
"  should  be  regarded  as  held  in  common,  will  not  consti- 
"  tute  the  party  offering  it  accessory  before  the  fact  to  a 
"  larceny;  free-love  publications  will  not  constitute  their 
"  authors  technical  parties  to  sexual  offenses  which  these 
"  publications  may  have  stimulated.  Several  youthful 
"  highway  robbers  have  said  that  they  were  led  into 
"crime  by  reading  Jack  Shepard;  but  the  author  of 
"Jack  Shepard  was  not  an  accessory  before  the  fact  to 
"  the  robberies  to  which  he  thus  added  impulse." 

In  volume  i,  section  179,  of  the  same  work,  the  learned 
author  says:  "It  would  be  hard,  also,  we  must  agree,  if  we 
"  maintain  such  general  responsibility,  to  defend,  in  pros- 
"  ecutions  for  soliciting  crime  the  publishers  of  Byron's 
"  '  Don  Juan,'  of  Rousseau's  '  Emile  '  or  Goethe's  '  Elective 
"  Affinities.'  Lord  Chesterfield,  in  his  letters  to  his  son, 
"  directly  advised  the  latter  to  form  illicit  connection  with 
"  married  women.  Lord  Chesterfield,  on  the  reasoning 
"  here  contended,  would  be  indictable  for  solicitation  to 
"adultery.  What  human  judge  can  determine  that  there 
"  /5  such  a  necessary  connection  between  one  matCs  advice 
"  and  another  matCs  action  as  to  make  the  former  the  cause 
"  of  the  latter  ?  " 

To  further  illustrate  the  doctrine  of  the  text  above 
quoted,  we  desire  to  cite  some  matters  so  familiar  as  to 
be  historic. 

Prior  to  the  year  1S60  slavery  was  an  institution  in  the 
United  States  recognized  by  the  constitution  and  pro- 
tected by  the  laws.  Upon  the  one  side  arose  a  body  of 
earrfest  and  devoted  men,  constituting  a  very  small 
minority  of  the  people  of  tiie   north,  who  denounced  the 


265 

jprovision  of  the  constitution  and  these  laws  passed  there- 
under in  unmeasured  terms — advocating  the  aboHtion  of 
.property  in  slaves,  and  demanding,  if  needs  be,  the  dissolu- 
tion and  reorganization  of  the  union  itself.  These  men 
openly  and  constantly  advocated  the  forcible,  immediate 
and  unconditional  abolition  of  slavery  without  compensa- 
tion for  the  slave  property  thus  proposed  to  be  confiscated 
or  abolished.  On  the  other  side  of  the  line  arose  prac- 
tically a  majority  of  the  influential  people  of  that  section, 
who,  standing  for  the  institution  of  slavery,  and  recogniz- 
ing the  tendency  of  these  efforts  of  the  abolitionist,  de- 
manded the  dissolution  of  the  Union  as  a  means  of  but- 
tressing about  and  perpetuating  beyond  question  or  inter- 
.ference  this  institution. 

As  a  result  of  the  agitation  of  the  first-named  body  of 
men,  at  last  John  Brown  organized  his  raid  in  Virginia,  re- 
sulting in  the  taking  of  human  life,  denounced  by  the  law 
as  murder.  He  and  his  immediate  associates,  being  ar- 
rested, were  tried,  found  guilty,  sentenced,  and  paid  the 
penalty  of  their  alleged  crimes  with  their  lives.  But, 
meanwhile,  back  of  John  Brown,  advocating  precisely 
what  he  attempted,  namely,  the  abolition  of  slavery  by 
•force  and  arms,  was  the  abolition  press  of  the  north,  the 
abolition  speakers,  preachers  and  people.  It  would  have 
been  easy  to  prove  on  the  part  of  all  these  a  general  con- 
■spiracy  to  overthrow  the  law  in  reference  to  chattel 
slavery,  and  to  have  shown  upon  their  part  such  advice, 
•such  sentiments,  such  predictions  of  violence,  bloodshed, 
di.sorder,  as  would  have  embraced  the  John  Brown  ex- 
pedition. 

In  the  light  of  history,  what  would  be  now  said  of  a 
proposal  to  indict  Horace  Greeley,  Wendell  Phillips,  Ger- 
irit  Smith,  William  Llo3'd  Garrison,  and  the  host  of  im- 
.anortals  whose  names   were  then    a    reproach   and  a    by- 


266 

word,  but  are  now  honored  in  all  lands,  under  the  charge 
of  murder,  and  to  attempt  to  secure  to  them  the  scaffold 
as  the  end  of  their  career,  because  of  the  act  of  John  Brown  ? 

On  the  other  side,  the  result  of  the  secession  agitation 
for  the  preservation  and  perpetuity  of  slavery,  an  agita- 
tion participated  in  by  almost  every  prominent  speaker  in 
the  south,  and  by  almost  ever}'  leading  newspaper;  an 
agitation  which  boldly  challenged  and  unhesitatingly  pre- 
dicted war;  an  agitation  which  made  provision  for  the 
struggle,  and  that  was  ready  in  advance  for  the  trial  of 
arms;  this  agitation  went  forward  for  years,  and  at  last 
resulted  in  the  great  struggle  of  1861  to  1865,  which 
involved  our  entire  land  and  caused  the  sacrifice  of  hun- 
dreds of  thousands  of  lives.  In  the  light  of  history,  what 
would  now  be  said  of  a  proposal  to  indict  the  participants 
of  this  movement  for  murder  and  to  bring  them  to  the 
scaffold,  because  of  their  advocacy  of  secessiou,  be- 
cause of  their  "  gigantic  conspiracy  against  the  law?" 

Let  us  take  another  illustration:  At  the  close  of  the 
war,  in  many  parts  of  the  south,  after  the  enfranchisement 
of  the  colored  race,  in  large  portions  of  the  territorj- 
there  was  as  to  numbers  a  dominance  of  the  colored  peo- 
ple. The  whites  of  these  localities,  in  many  instances,  set 
themselves  deliberately  and  resolutely  to  control  by  any 
and  all  means  this  colored  majority,  and  to  keep  the  con- 
trol of  their  governmental  affairs  in  their  own  hands.  The 
result  was  what  was  familiarl}'  called  the  "  shot-gun  pol- 
icy." A  large  proportion  of  the  press  of  the  south  joined 
in  the  continual  expression  of  the  sentiment  that  the  white 
race  should  dominate—  peaceably  if  possible,  but  forcibly 
if  necessar}'.  This  position  was  advocated  openly  and 
undisguisedly  in  the  editorial  columns  and  communications 
of  these  papers,  by  speakers  upon  the  rostrum  and  stump, 
and  the  resolution  becrfme  in  effect  an  agreement  substan- 


267 

tially  to  .deprive  the  black  race  in  these  particular  territo- 
ries of  the  free  exercise  of  their  legal  rights;  a  conspir- 
acy to  control  the  goverment  for  the  time  being  as  against 
what  was  believed  to  be  an  ignorant,  incapable  and  mis- 
guided majority.  The  result  was  many  massacres  occur- 
ring in  many  parts  of  the  country  by  organized  bodies  of 
men — the  K.  K.  K.  and  other  organizations — massacres 
as  deliberate,  inexcusable  and  cold-blooded  as  any  per- 
haps which  have  ever  disgraced  the  annals  of  civilized  so- 
ciety, but  which  were  excused  or  apologized  for  in  large 
measure  by  the  local  press  on  the  plea  of  necessity.  Was 
it  ever  pretended  that  these  newspaper  editors  and  stock- 
holders could  be  made  liable  upon  indictments  for  murder 
for  the  lawless  conduct  of  these  night-riders?  Who  ever 
thought  of  attempting  to  hold  as  guilty  of  murder  parties 
not  shown  by  legal  proof  to  have  specially  advised  or  par- 
ticipated in  the  particular  crime  referred  to?  What  would 
have  been  thought  of  a  deliberate  suggestion  to  arrest  in 
the  locality  of  these  atrocities  the  political  leaders  among 
the  whites,  including  the  newspaper  editors,  compositors 
and  stockholders,  and  attempting  to  hold  them  for  the 
murders  committed  in  these  massacres  and  assassinations, 
without  any  attempt  to  show  that  they  participated  in  the 
crime  or  advised  the  perpetration  of  the  offense? 

Again,  substantially  the  entire  press  of  the  Pacific 
slope  for  many  years  past  has  joined  in  the  hue  and  cry- 
"  the  Chinese  must  go."  Against  this  people,  columns 
of  editorials  and  communications  were  constantly  appear- 
ing, denouncing  them  in  the  most  violent  terms,  declaring 
them  unworthy  to  live,  and  taking  the  position  that  any 
means  were  justifiable  to  get  rid  of  them,  even  to  the 
point  of  their  physical  extermination.  They  were  in  this 
country  by  legal  right,  by  virtue  of  treaties  and  pro, 
visions   deliberately  entered  into  by  this  government,  and 


268 

solemnl)'  sanctioned.  This  agitation  to  secure  their  ex- 
clusion and  expulsion  from  our  shores  amounted  in  effect 
to  a  general  conspiracy  to  produce  the  result  desired. 
As  a  consequence  of  this  opposition,  thus  stimulated  and 
excited,  to  the  highest  pitch,  numerous  massacres  occurred 
from  time  to  time  in  various  portions  of  the  far  west, 
where  armed  bodies  of  men  deliberately  set  upon  the 
Chinese,  in  their  own  quarters  and  in  their  own  homes, 
murdering  them  mercilessl}^  and  brutally.  It  is  only 
within  a  very  short  time  that  the  last  of  these  massacres 
occurred  in  Wyoming.  Many  more  lives  were  sacri- 
ficed in  these  massacres,  on  many  different  occasions, 
than  were  sacrificed  at  the  Haymarket.  But  no  sug- 
gestion was  ever  made  that  the  newspaper  editors 
and  writers  were  criminally  liable  for  these  massacres, 
and  should  be  executed  on  account  of  them.  Still  less 
did  the  claim  ever  find  sane  advocacy  that  men  connected 
with  these  newspapers  as  stockholders,  or  in  some  other 
manner,  should  be  indicted  for  the  murder  of  these 
Chinese. 

Let  it  not  be  said  that  these  illustrations  are  far-fetched. 
The  action  of  the  people  in  reference  to  these  cases 
serves  to  illustrate  the  consensus  of  enlightened  humanity 
with  reference  to  matters  of  this  nature.  It  has  been  a 
part  of  the  policy  of  our  country,  and  of  our  laws,  under 
the  constitutional  guaranty  of' free  speech,  to  permit  the 
utmost  latitude  in  the  matter  of  agitation  for  supposed 
reform.  And  let  it  be  remembered  that,  as  in  the  case  of 
the  abolition  agitation,  the  claim  of  reform  always  in  the 
first  instance  finds  its  advocacy  only  in  the  lips  of  the 
minority,  while  the  majority  den}'  that  the  proposed  change 
is  reformatory,  usually  contending  that  it  is  altogether 
pernicious.  We  repeat  that  the  common  sense  of  the  com- 
munity at  large  has  applied  this  general  rule  to  matters  of 


269 

this  nature;  that  no  matter  what  general  advice  looking 
to  a  general  line  of  conduct  may  have  been  given  by  one 
party,  or  a  set  of  parties;  and  no  matter  to  what  extent 
that  general  advice  may  have  entered  into  the  education, 
and  into  the  formation  of  the  opinions  and  views,  of  the 
particular  individual  subsequently  committing,  perhaps 
under  the  direct  influence  of  this  general  advice,  a  par- 
ticular crime;  yet,  if  the  individual  committing  the  crime 
acts  in  the  commission  thereof  upon  his  own  volition  and 
responsibility,  he  alone  must  bear  the  penalty  of  the 
crime;  while  the  adviser  can  be  held  only  when  there  is 
shown,  passing  entirely  beyond  the  realm  of  general  agi- 
tation, general  advocacy  of  measures,  general  advice  of 
processes,  special  advice  to  the  doer  of  the  deed  involving 
the  commission  of  the  f  articular  crime,  whereby  the  adviser 
becomes  personally  involved  in  the  turpitude  of  the  par- 
ticular act,  as  having  been  done  at  his  suggestion  at  the 
time  and  under  the  circumstances  of  its  commission. 

We  respectfully  submit  that  the  doctrine  of  instruction 
5^  and  the  other  instructions  for  the  people  presenting  the 
same  view,  substantially  amount  to  the  introduction,  for 
the  first  time,  into  criminal  jurisprudence,  of  the  principle 
that  a  supposed  or  possible  moral  responsibility  involves 
the  penalty  of  legal  offense. 


V.     Instruction  5^  contained  no  reference  to  the 

EVIDENCE. 

Aside  from  the  general  views  of  the  doctrine  of  instruc- 
tion 5I  above  considered,  it  is  further  subject  to  a 
special  criticism,  namely,  that  it  contained  no  refer- 
ence to  the  evidence  as  the  basis  of  the  contem- 
plated or  permitted  action  or  finding  of  the  jury.  There 
is    not    from    the  opening  to  the    close    of    this    import- 


270 

ant  and  vital  instruction,  a  single  reference  to  the  evi- 
dence. The  jury  are  not  told  in  it  that  if  they  find 
from  the  evidence  so  and  so,  then  they  can  conclude  thus 
and  so,  but  they  are  left  free  to  draw  upon  all  sources  of 
information,  and  full  rein  is  given  to  their  prejudices, 
preconceptions  and  even  fancies.  Wf  do  not  need  to 
elaborate  this  criticism.  A  simple  reading  of  the  instruc- 
tion shows  its  utter  viciousness  in  the  light  of  the  well- 
recognized  principle  of  law,  that  the  jury  must,  in  their 
findingF,  be  limited  to  the  evidence  in  the  case. 

As  to  the  law  on  this  point,  we  will  only  quote  what 
our  Supreme  court  stated  in  Ewing  v.  Rankle^  20  111., 
44S:  "A  jury  should  be  permitted  to  believe  nothing 
"  except  that  belief  be  occasioned  by  the  evidence,  and 
"  their  minds  shotdd  always  be  directed  to  that,  and  that 
'■•  alone,  as  the  ground  of  their  belief." 

This  doctrine,  flowing  from  the  provisions  of  our 
statute  (Chapter  no.  Sec.  52,  Hurd's  R.  S.,  18S5),  has 
been  upheld  by  a  long  line  of  decisions  in  this  court,  col- 
lected in  the  recent  case  of  Chambers  v.  TIic  People,  105 
111.,  409,  which  again  emphasizes  that  rule. 

The  error  indicated  is  the  more  significant,  as  this 
was  the  longest  single  instruction  given  in  behalf  of 
the  people,  came  early  in  the  series,  and  was  the 
instruction  which  perhaps  most  thoroughly  and  com- 
pletely presented  the  theory  of  the  prosecution,  and  sum- 
marized the  repeated  rulings  of  the  court  upon  the  ques- 
tions of  evidence  in  the  progress  of  the  trial.  It  was, 
therefore,  pre-eminently  the  most  important  instruction 
given  in  behalf  of  the  people,  and  the  one  which,  in  view 
of  the  arguments  which  had  transpired,  must  have  been 
most  influential  with  the  jury,  and  must  have  most  deeply 
impressed  itself  upon  their  minds. 

This  instruction    permits  the  jury  to  surmise,  zvitlioiit 


271 

reference  to  the  evidence  in  tlic  case,  that  the  allej^ed 
murder  was  committed  under  the  influence  and  encour- 
agement of  general  advice  from  some  member  of  a  sup- 
posed conspiracy,  given  in  public  speeches  and  writings; 
it  permits  the  jury  to  o-uess,  zvithonl  reference  to  the  evi- 
dence,Xh&X.  the  murder  was  committed  by  a  disciple  of  one 
of  those  conspirators. 

Nor  will  it  do  to  say  that  this  defect  of  this  instruction 
is  supplied  in  other  instructions,  for  example,  in  the  in- 
struction given  by  the  court  upon  its  own  motion,  later, 
where  an  attempt  was  made  to  limit  the  investigation  and 
determination  of  the  jury  to  the  evidence  presented.  In 
crin-.inal  practice,  and  particularly  in  capital  cases,  it  is  es- 
sential that  each  instruction  (certainly  every  vital  instruc- 
tion, such  as  this)  shall  be  complete  and  correct  in  itself, 
and  its  defects  cannot  be  helped  out  if  they  exist  by  refer- 
ence to  other  instructions.  It  is  stated  by  Mr.  Wharton 
(Cr.  PI.  &  Pr.,  8th  Ed.,  §  793),  that  "  material  error  in 
*'  one  instruction  calculated  to  mislead  is  not  cured  by  a 
"  subsequent  contradictory  instruction." 

Accordingly,  in  Murray  v.  Commonwealth,  79  Penn. 
State,  311,  there  was  a  reversal,  because  of  an  error  in 
one  part  of  the  charge,  although  that  error  was  appar- 
ently corrected  in  the  general  charge.  So  in  Clem  v. 
State,  31  Indiana,  it  was  held  that  an  erroneous  charge 
given  in  behalf  of  the  people  was  not  cured  by  giving  a 
contradictory  and  correct  charge  upon  the  same  point  at 
the  request  of  the  defendant. 

So  in  Howard  v.  The  State,  5^  Indiana,  the  same  rule 
is  announced  and  followed,  as  also  in  People  v.  Valencia, 
43  <-'al-,  543- 


272 


VI.     Erroneous    Instructions    as    to    Reasonable. 
Doubt. 

Instruction  12,  given  on  behalf  of  the  people,  was  as- 
follows  (i  A.,  10;  O,  7): 

"  The  court  instructs  the  jury,  as  a  matter  of  law,  that 
"  in  considering  the  case  the  jury  are  not  to  go  beyond 
"  the  evidence  to  hunt  up  doubts,  nor  must  they  entertain^ 
"  such  doubts  as  are  merelj*  chimerical  or  conjectural.  A. 
"  doubt,  to  justify  an  acquittal,  must  be  reasonable,  and 
"  it  must  arise  from  a  candid  and  impartial  investigation^ 
"  of  all  the  evidence  in  the  case,  and  unless  it  is  such  that 
"  were  the  same  kind  of  doubt  interposed  in  the  graver 
"  transactions  of  life,  it  would  cause  a  reasonable  and 
"  prudent  man  to  hesitate  and  pause,  it  is  insufficient  tO' 
"  authorize  a  verdict  of  not  guilty.  If,  after  considering: 
"  all  the  evidence,  you  can  say  you  have  an  abiding  con- 
"  viction  of  the  truth  of  the  charge,  you  are  satisfied  be- 
"  yond  a  reasonable  doubt." 

In  Bro-wn  v.  State,  5  North-Eastern  Reporter,  903,  de- 
cided March  30,  1886,  the  Supreme  court  of  Indiana 
said: 

"  In  the  third  instruction  the  court  undertook  to- 
"  define  what  constituted  a  reasonable  doubt.  The  jury 
"  were  told,  in  substance,  that  it  was  not  their  duty  to  go- 
"  beyond  the  evidence  in  search  of  doubts  based  or> 
"  merely  groundless  conjectures;  that,  in  order  to  justify 
"  an  acquittal,  the  doubt^ should  be  reasonable,  and  arise 
"  of  an  impartial  consideration  of  the  evidence  in  the  case^ 
"  and  that  it  must  be  such  a  doubt  as  would  cause  a  pru- 
"  dent  and  considerate  man  to  hesitate  before  acting  ir* 
"  the  gravest  and  most  important  affairs  of  life;  that  if^ 
"upon  a   careful   and   impartial   consideration  of   all   the 


273 

"  evidence,  the  jury  had  an  abiding  conviction  of  the  de- 
"  fendant's  guilt,  then  they  were  satisfied  beyond  a 
"  reasonable  doubt.  We  cannot  commend  this  instruction. 
"  It  is  not  an  accurate  statement  of  the  law  upon  the  sub- 
"  ject  of  reasonable  doubt.  To  the  extent  that  the  in- 
"  struction  was  liable  to  be  understood  as  saying  to  the 
"  jury  that,  in  order  to  justify  an  acquittal,  the  doubt  of 
"  the  defendant's  guilt  must  arise  out  of  the  evidence,  and 
"  be  such  as  to  cause  a  prudent  man  to  hesitate  before, 
"  acting  in  matters  of  the  gravest  concern,  it  was  clearly 
"  wrong.  It  is  not  the  law  that  in  order  to  justify  an 
"  acquittal  the  doubt  must  arise  out  of  the  evidence  given, 
"  and  be  such  as  to  cause  a  prudent  man  to  hesitate.  The 
"  doubt  may  arise  from  a  want  of  evidence. 

"  In  order  to  justify  a  conviction  the  evidence  must  be 
"  such  as  to  produce  in  the  minds  of  prudent  men  such 
"  certainly  that  they  would  act  upon  the  conviction  pro- 
"  duced  without  hesitation  in  their  own  most  important 
«'  afiairs.  Jerrell  v.  State,  58  Ind.,  293;  Stout  v.  Stale, 
"  90  Ind.,  I." 

See  also  note  to  the  above  case,  5  N.  E.  R.,  905. 

To  the  same  effect  is, 

I  Greenleaf  Ev.,  14th  Ed.,  Sec.  13A    and 

note  A. 
Wharton   Cr.  Ev.,  9th  Ed.,  Sec.  718. 

Instruction  13,  given  for  the  state,  is  also  clearly  obnox- 
ious to  the  rule  of  law  established  by  the  above  authori- 
ties.    It  is  as  follows  (i  A.,  10,  11;  O,  7): 

"  The  court  further  instructs  the  jury,  as  a  matter  of 
"  law,  that  the  doubt  which  the  juror  is  allowed  to  re- 
"  tain  on  his  own  mind,  and  under  the  influence  of  which 
"  he  should  frame  a  verdict  of  not  guilty,  must  always  be 
"  a  reasonable  one.  A  doubt  produced  by  undue  sensi- 
"  bility  in   the  mind   of  any  juror,  in   view  of  the   conse- 


274 

"  quences  of  his  verdict,  is  not  a  reasonable  doubt,  and  a 
"  juror  is  not  allowed  to  create  sources  or  materials  of 
"  doubt  by  resorting  to  trivial  and  fanciful  suppositions 
"  and  remote  conjectures  as  to  possible  states  of  fact 
"  differing  from  that  established  by  the  evidence.  You 
"  are  not  at  liberty  to  disbelieve  as  jurors,  if  from  the  evi- 
"  dence  you  believe  as  men;  your  oath  imposes  upon  you 
"  no  obligation  to  doubt  where  no  doubt  would  exist  if  no 
"  oath  had  been  administered." 

We  further  specially  object  to  this  instruction,  that  it 
permits  the  jury  to  find  a  verdict  against  the  plaintiffs  in 
error  upon  any  conviction  in  reference  to  the  issue  with 
which  they  entered  the  jury  box.  In  the  closing  clause, 
"  your  oath  imposes  upon  you  no  obligation  to  doubt  where 
"  no  doubt  would  exist  if  no  oath  had  been  administered," 
they  are,  in  effect,  told:  If  you  entered  this  jury  box  con- 
vinced of  the  guilt  of  the  defendants,  you  are  not  obliged 
to  lay  that  persuasion  aside,  but  maj'  resolve  all  possible 
doubts  by  that  prior  conviction.  No  other  interpretation 
can  possibly  be  given  to  this  instruction,  particularly  in 
the  light  of  the  rulings  of  the  court  as  to  the  competency 
of  jurors,  to  which  we  shall  have  occasion  to  call  atten- 
tion later.  Again  and  again  during  the  impaneling  of  the 
jury,  the  plaintiffs  in  error  were  denied  the  privilege  of 
asking  a  proposed  juror  whether,  if  a  doubt  arose  in  his 
own  mind  upon  the  evidence,  the  conviction  or  opinion 
entertained  at  the  time  of  the  examination  would  control 
the  verdict  or  determine  the  action  of  the  juror.  At  times 
such  questions  were  allowed  to  be  asked,  but  at  other 
times  the  answering  of  them  was  disallowed.  Here  was, 
in  effect,  in  this  instruction,  a  charge  that  under  their 
oaths  as  jurors  there  was  no  obligation  upon  them  to  en- 
tertain any  doubts  which  did  not  exist  in  their  own  minds 
when  they  took  their  seats  in  the   jury  box. 


275 

The  further  statement  of  this  instruction,  "You  are  not 
"  at  liberty  to  disbelieve  as  jurors,  if,  from  the  evidence, 
"  you  believe  as  men,"  is,  we  maintain,  an  utterly  perni- 
cious and  illegal  proposition.  We  are  aware  that  one 
authority  can  be  found  to  support  this  instruction.  But 
we  confidently  submit  that  that  authority  is  not  law. 
Many  a  man  as  a  man,  from  evidence  produced  before 
him,  may  be  morally  certain  that  a  particular  hypothesis 
is  true,  who  yet,  if  a  fair  and  reasonable  man,  will  say 
without  hesitation  that  the  h3-pothesis,  though  fully  be- 
lieved, is  not  supported  by  the  evidence  adduced  beyond 
reasonable  doubt.     The  old  saw, 

"  A  man  convinced  against  his  will 
Is  of  tlie  same  opinion  still," 

is  merely  a  familiar  .expression  of  the  truism,  that  many 
men  believe  not  only  without,  but  against,  evidence.  It  is 
not  true,  therefore,  that  evidence  which  produces  mere 
mental  persuasion  of  the  truth  of  a  certain  hypothesis,  would 
legally  support  a  verdict  based  upon  such  persuasion.  It 
is  not  true  that  the  jury  "  are  not  at  liberty  to  disbelieve 
"  as  jurors,  if,  from  the  evidence,  they  believe  as  men  "; 
but,  on  the  contrary,  they  may,  as  honest  jurors,  be  com- 
pelled to  doubt,  even  where  they  are  morally  certain  as 
to  the  issue  presented.  It  seems  to  us  that  the  closing 
part  of  this  instruction  is  absolutely  vicious. 

The  true  test  on  a  question  of  this  kind  is.  What,  as 
reasonable,  prudent,  fair-minded  men,  they  are  justified  in 
believing  the  legal  evidence  produced  establishes,  and  not 
what  they  may  choose  or  be  able  to  persuade  themselves 
to  believe  "  as  men  "  from  the  evidence.  Beliefs,  even 
in  their  relations  to  evidence,  are  largely  controlled  in  the 
every-day  affairs  of  life  by  the  prejudices  or  passions  or 
predispositions  of  men;  and  it  would  be  giving  a  most 
dangerous    latitude  to  say   that  whatever   they  choose   to 


276 

believe  as  men,  from  the  evidence,  they  may  act  upon  as 
jurors.  How  much  worse  when,  in  the  language  of  this 
instruction,  they  are  told  in  effect  that  they  are  not  at 
liberty  to  disbelieve  as  jurors  anything  which  from  the 
evidence  they  believe  as  men,  no  matter  by  what  influ- 
ence or  considerations  that  belief  is  induced  or  controlled. 


VII.      The  Jury   are  the  Judges   of   the  law   in 

CRIMINAL    cases. 

By  instruction  13^  the  court  told  the  jury  as  follows: 
(i  A.,  11;  O,  7,8). 

"  The  court  instructs  the  jury  that  they  are  the  judges 
"  of  the  law  as  well  as  the  facts  in  this  case,  and  if  they 
"  can  say,  upon  their  oaths,  that  they  know  the  law  bet- 
"  ter  than  the  court  itself,  they  have  the  right  to  do  so; 
"  but  before  assuming  so  solemn  a  responsibility,  they 
"  should  be  assured  that  they  are  not  acting  from  caprice 
"  or  prejudice,  that  they  are  not  controlled  by  their  will 
"  or  their  wishes,  but  from  a  deep  and  confident  convic- 
"  tion  that  the  court  is  wrong  and  that  they  are  right. 
"  Before  saying  this,  upon  their  oaths,  it  is  their  duty  to 
"  reflect  whether  from  their  study  and  experience  they 
"  are  better  qualified  to  judge  of  the  law  than  the  court. 
"  If,  under  all  the  circumstances,  they  are  prepared  to 
"  say  that  the  court  is  wrong  in  its  exposition  of  the  law, 
"  the  statute  has  given  them  that  right." 

This  instruction  is,  as  we  understand  the  authorities, 
wholly  without  warrant  in  the  law.  It  is,  in  effect,  an 
attempt  to  destroy  the  statutory  provision  making  the 
jury  judges  of  the  law,  and  to  constrain  the  jury  into  an 
unquestioned  acceptance  of  the  law  as  delivered  by  the 
presiding  judge.     This    is  not  the  intent  of  the   statute. 


277 

The  history  of  litigation  is  too  full  of  the  findings  by  the 
courts  of  re%'iew  of  grave  errors  as  to  the  view  of  the 
law  adopted  by  the  trial  court,  and  presented  in  the  in- 
structions, to  make  it  permissible  in  a  case  of  this  kind 
for  the  judge  to  lecture  the  jury  upon  the  solemnity  of 
the  responsibility  which  they  would  assume  if  they  under- 
took to  reach  a  conclusion  based  upon  their  views  of  the 
law  as  properly  applicable  to  the  case.  The  statute  of 
our  state,  which  makes  the  jury  the  judges  of  the  law, 
did  not  confine  this  provision  to  such  jurors  who  have 
made  the  science  of  the  law  the  study  of  their  life,  did 
not  intend  to  limit  the  power  conferred  thereby  to  men 
"  who  from  their  study  and  experience  are  better  quali- 
"  fied  to  judge  of  the  law  than  the  court."  The  legislature 
could  not  possibly  have  in  view  a  jury  of  that  kind, 
because  every  day  experience  teaches  that  juries  are  sel- 
dom composed  of  lawyers;  in  fact  lawyers  are  exempt 
from  jury  service. 

In  support  of  the  correctness  of  instruction  13^  will 
probably  be  cited  the  case  of  Schnier  v.  The  People,  23 
111.,  17.  The  language  there  used  is  the  same  as  that 
embodied  in  this  instruction,  but  it  is  apparent,  from  read- 
ing the  opinion,  that  it  was  a  general  reasoning,  and  was 
not  meant  to  sanction  an  instruction  to  the  jury  of  that 
kind. 

In  the  case  of  Clem  v.  State,  31  Indiana,  480,  the  pro- 
priet}'  of  such  an  instruction  as  this  came  directly  under 
review.  There  the.instruction,  after  stating  that  the  jury 
might  determine  the  law  for  themselves,  proceeded  to  ad- 
vise them  that  they  should  "  be  well  satisfied  in  their  own 
"  minds  of  the  incorrectness  of  the  law  as  given  by  the 
"  court  before  assuming  the  responsibility  of  determining 
"  for  themselves."  It  was  held  by  the  Supreme  court  of 
Indiana  that  upon  careful  analysis  this  instruction  was    in 


278 

direct  conflict  with  the  provision  of  the  constitution  of  that 
state  that  "in  all  criminal  cases  the  jury  shall  have  the 
"  right  to  determine  the  law." 

In  commenting  upon  this  matter  the  Supreme  court  of 
Indiana  used  the  following  language: 

"  If  the  judge  adorns  his  high  place  by  his  learning  and 
"  impartialit}^  his  jurors  will  be  apt  to  rely  upon  his  in- 
"  structions,  because  they  will  deem  them  correct.  They 
"  may  reasonably  rely  on  them  as  a  trustworthy  source  of 
"  information  concerning  the  law,  as  they  would  upon  a 
"  truthful  witness  concerning  the  facts,  not  because  any 
"  rule  of  law  requires  that  they  must,  but  because  their 
"  own  common  sense  suggests  the  credit  due  to  the  legal 
"  opinion  of  such  a  judge.  But,  on  the  other  hand,  a 
"  magistrate  destitute  of  character  for  either  knowledge 
"  of  the  law  or  uprightness  in  his  administration,  and  wlio 
"  so  deports  himself  through  the  trial  as  to  destroy  con- 
"  fidence  in  his  fairness,  will  not  be  so  apt  to  command 
"  the  confidence  of  his  jury.  He  would  not  be  worthy  of 
"  it.  Distrust  would,  in  such  a  case,  result  from  the  e.\- 
"  ercise  of  a  sound  judgment.  The  constitutional  pro- 
"  vision  means  that  in  criminal  cases  the  jury  shall  be  free 
"  to  exercise  this  judgment.  It  does  not  proceed  upon 
"  the  presumption  that  all  judges  know  the  law,  and  will 
"  impartially  declare  it,  but,  on  the  contrary,  its  necessity 
"  was  suggested  by  circumstances  which  proved  that  this 
"  was  not  true.  Judges  had,  in  England,  stained  the 
"  ermine  by  using  their  position  to  secure  the  conviction  of 
"  citizens  in  defiance  of  law,  to  serve  the  purposes  of  party. 
"  It  might  be  done  again,  and  here.  We  were  entering 
"  upon  the  experiment  of  an  elective  judiciary  under 
"  which  judges  might  be  chosen  for  partisan  services,  and 
"might  be  too  ready  to  serve  the  interest  that  had  given 
"  them  position.     Criminal  prosecutions  had  ever  been  a 


279 

•  favorite  resort  of  those  in  power  in  times  of  high  ex- 
citement.     It  would  be   some   security   against  possible 

■  abuses  to  put  the  ultimate  function  of  judgment   of   the 

■  law  as  well  as  the  facts  in  the  hands  of  the  jury  drawn 

•  from  the  body  of  the  county;  and  hence  it  was  done. 
It  is  enough  that  it  is  so  written.  *  *  *  The  courts 
have  no  authority  to  modify  it,  for  that  would  be  to  de- 
feat, in  a  measure  -^t  least,  the  end  which  it  was  de- 
signed to  secure." 


VIII.     Proper    Instructions    for    the    Defendants 
Refused. 

We  believe  the  proper  rule  of  law,  as  applicable  to  the 
facts  in  the  case  at  bar,  is  as  presented  in  several  of  the 
instructions  asked  in  behalf  of  the  plaintiffs  in  error  and 
which  were  refused  by  the  court.  We  refer  particularly 
under  this  head  to  instructions  3,  8,  9,  11  and  18,  which 
are   as  follows  ( i  A.,  1 2  f/  seq. ) : 

"  3.  The  court  instructs  the  jury  that,  in  order  to  con- 
"  vict  these  defendants,  they  must  not  only  find  that  they 
"  entered  into  an  illegal  conspiracy,  and  that  the  Hay- 
"  market  meeting  was  an  unlawful  assembly  in  aid  of  said 
"  conspiracy,  but  in  addition  thereto  that  the  bomb  by 
"  which  officer  Degan  lost  his  life  was  cast  by  a  member 
"of  said  conspiracy  in  aid  of  the  common  design,  or  by 
"a  person  outside  of  said  conspiracy,  aided  and  ad- 
"  vised  by  all  or  some  one  of  these  defendants;  but  in  any 
"  event,  should  you  find  such  a  conspiracy  from  the  evi- 
"dence  to  have  been  in  existence,  any  one  or  more  of 
"these  defendants  not  found  beyond  a  reasonable  doubt 
"  to  have  been  a  member  thereof,  and  who  is  or  are  not 
"  proved  beyond  a  reasonable  doubt  to  have  been  present 
"  at   the    Haymarket   meeting,  or  who,  if  present,  did  not 


■  knowingly    counsel,   aid   or   abet   the   throwing  of  the 

■  bomb  by  which  officer  Degan  lost  his  life,  such  defend- 

•  ant  or  defendants  you  are  bound  to  acquit. 

"  8.     If  the  jury  believe  from  the  evidence  that  the  de- 

■  fendants  or  any  one  of  them  entered  into  a  conspiracy 
'  to  bring  about  a  change  of  government  for  the  ameliora- 

•  tion  of  the  condition  of  the  working  classes  by  peace- 
'  able  means,  if  possible,  but  if  necessary  to  resort  to 
'  force  for  that  purpose,  and  that  in  addition  thereto  in 
'  pursuance  of  that  object  the  Haymarket  meeting  was 
'  assembled  by  such  conspirator  or  conspirators  to  discuss 
'  the  best  means  to  right  the  grievances  of  the  working 
'  classes,  without  any  intention  of  doing  any  unlawful  act 
'  on  that  occasion,  and  while  so  assembled  the  bomb  by 
'  which  officer  Degan  lost  his  life  was  thrown  by  a  person 
'  outside  of  said  conspiracy,  and  without  the  knowledge 
'  and  approval  of  the  defendant  or  defendants,  so  found 
'to  have  entered  into  said  conspiracy,  then  and  in 
'tliat  case  the  court  instructs  the  jury  that  they  are 
'  bound  to  acquit  the  defendants. 

"9.  The  court  instructs  the  jury  that  it  is  not  enough 
'  to  find  that  the  defendants  unlawfully  conspired  to  over- 
'  throw  the  present  form  of  government,  and  that  the 
'  Haymarket  meeting  was  an  unlawful  assembly  called 
'  by  these  defendants  in  furtherance  of  that  conspiracy, 
'  but  you  mus:  find,  in  addition  thereto,  that  the  bomb  by 
'  which  officer  Degan  lost  his  life  was  thrown  b}^  a  mem- 
'  her  of  said  conspiracy,  in  aid  of  the  common  design;  or 
'  if  you  should  find  that  it  was  thrown  by  a  person  not 
'  proved  beyond  a  reasonable  doubt  to  have  been  a  mem- 
'  ber  of  said  conspiracy,  then  you  must  find  that  these  de- 
'  fendants  knowingly  aided  and  abetted  or  advised  such 
'  bomb-thrower  to  do  the  act,  otherwise  you  are  bound 
'  to  acquit  them. 


28l 

"  II.  The  court  further  instructs  the  jury,  that  unless 
■"  you  find  from  the  evidence,  beyond  all  reasonable  doubt, 
*'  that  there  was  a  conspiracy  existing  to  which  the  de- 
■"  fendants  or  some  of  them  were  parties,  and  that  the  act 
"  resulting  in  the  death  of  Mathias  J.  Degan  was  done  by 
-"  somebody  who  was  a  party  to  said  conspiracy,  and  in 
■"  pursuance  of  the  common  design  of  said  conspiracy,  you 
"  must  find  the  defendants  not  guilty,  unless  the  evidence 
■"  convinces  you,  beyond  all  reasonable  doubt,  that  the  de- 
■"  fendants  or  any  of  them  personally  committed  the  act 
"  resulting  in  the  death  of  Mathias  J.  Degan,  as  charged 
•"  in  the  indictment,  or  that  the  defendants  or  any  of  them 
■"  stood  by  and  aided,  abetted  or  assisted,  or  not  being 
•"  present,  had  advised,  aided,  encouraged  or  abetted  the 
"  perpetration  of  the  crime  charged  in  the  indictment,  and 
"  then  you  should  find  guilty  only  those  defendants  as  to 
■"  whom  the  evidence  satisfies  you,  beyond  all  reasonable 
*'  doubt,  that  they  thus  committed  or  aided  in  the  commis- 
•"  sion  of  the  crime  charged  in  the  indictment. 

"  iS.  Although  certain  of  the  defendants  may  have 
•"  advised  the  use  of  force  in  opposition  to  the  legally  con- 
*'  stituted  authorities,  or  the  overthrow  of  the  laws  of  the 
■"  land,  yet  unless  the  jury  can  find,  beyond  all  reasonable 
-"  doubt,  that  they  specifically  threw  the  bomb  which 
"  killed  Degan,  or  aided,  advised,  counseled,  assisted  or 
■"  encouraged  said  act,  or  the  doing  of  some  illegal  act  or 
"  the  accomplishment  of  some  act  by  illegal  means  in  the 
"  furtherance  of  which  said  bomb  was  thrown,  you  should 
■"  return  said  defendants  not  guilty." 

We  respectfully  submit  that  these  instructions  above 
quoted  correctly  announce  the  law  as  applicable  to  the 
case  at  bar,  and  insist  that  they  should  have  been  given 
as  asked,  and  that  the  refusal  so  to  do  was  manifest  error. 
No  other  instructions  given  in  the  case  presented  this 
theory. 


282 

Two  other  instructions,  particularly,  were  asked  bv 
the  plaintiffs  in  error  and  refused,  which  we  insist  should 
have  been  given.     No.   i  (^i  A.,  12;  O,  10)  is  as  follows: 

"  No  person  can  be  legally  convicted  under  the  laws 
of  Illinois  on  account  of  any  opinion  or  principles  enter- 
tained by  him.  It  cannot  be  material  in  this  case  that 
defendants,  or  some  of  them,'  are  or  may  be  socialists,, 
communists  or  anarcliists,  and  no  prejudice  ought  to  be 
borne  against  them  on  account  thereof  by  the  jury,  al- 
though the  jury  may  believe  their  doctrines  are  false  and 
pernicious." 

What  objection  is  there,  what  well-founded  objection, 
to  this  instruction?  And  certainly,  in  view  of  the  char- 
acter of  the  jury  examinations,  and  particularly  in  view 
of  the  appeals  by  the  state's  attorney  in  his  closing  argu- 
ment to  the  passions  and  prejudices  of  the  jury  against 
the  defendants,  as  supposed  socialists,  anarchists  or  com- 
munists, it  was  most  fit  and  proper  that  an  instruction  of 
this  character  should  be  given,  to,  at  least,  measurably 
protect  plaintiffs  in  error  from  the  improper  influence  of 
these  appeals.  As  to  these  features  of  the  address  of  the 
state's  attorney,  we  shall  have  occasion  to  comment  later,, 
but  at  present  content  ourselves  with  the  mere  reference 
as  serving  to  illustrate  the  propriety  of  the  instructior* 
asked,  and  the  error  of  its  refusal. 

Instruction  13  asked  in  behalf  of  the  plaintiffs  in  error 
(i  A.,  15;  Vol.  O,  15),  was  as  follows: 

"  The  court  further  instructs  the  jury,  that  under  the 
constitution  of  this  state,  it  is  the  right  of  the  people  to- 
assemble  in  a  peaceable  manner  to  consult  for  what  they 
believe  to  be  the  common  good,  and  that  so  long  as  such 
meeting  is  peaceably  conducted,  orderly,  and  not  tending 
to  riot  or  a  breach  of  the  peace,  no  official  or  authority 
has  or  can  have  any  legal  right  to  attempt   the  dispersal 


283 

thereof  in  a  forcible  manner.  Such  attempt,  if  made, 
would  be  unwarranted  and  illegal,  and  might  legally 
be  resisted  with  such  necessary  and  reasonable  degree 
of  force  as  to  prevent  the  consummation  of  such  dis- 
persal. 

"  If  the  jury  believe  from  the  evidence  in  this  cause  that 
the  meeting  of  May  4,  1886,  was  called  for  a  legal  pur- 
pose, and  at  the  time  it  was  ordered  to  disperse  by  the 
police  was  being  conducted  in  an  orderly  and  peaceable 
manner,  and  was  about  peaceably  to  disperse;  and  that 
the  defendants,  or  those  participating  in  said  meeting, 
had,  in  connection  therewith,  no  illegal  or  felonious  pur- 
pose or  design,  then  the  order  for  the  dispersal  thereof 
was  unauthorized,  illegal,  and  in  violation  of  the  rights 
of  said  assembly  and  of  the  people  who  were  there  gath- 
ered. 

"And  if  the  jury  further  believe  from  the  evidence  that 
the  meeting  was  a  quiet  and  orderl}'  meeting,  lawfully 
convened,  and  that  the  order  for  its  dispersal  was  unau- 
thorized and  illegal  under  the  provisions  of  the  constitu- 
tion of  this  state  referred  to,  and  that  upon  such  order 
being  given,  some  person  in  said  gathering,  without  the 
knowledge,  aid,  counsel,  procurement,  encouragement  or 
abetting  of  the  defendants,  or  any  of  them,  then  or  there- 
tofore given,  and  solely  because  of  his  own  passion,  fear, 
hatred,  malice  or  ill-will,  or  in  pursuance  of  his  view  of 
the  right  of  self-defense,  threw  a  bomb  among  the  police, 
wherefrom  resulted  the  murder  or  homicide  charged  in 
the  indictment,  then  the  defendants  would  not  be  liable 
for  the  results  of  such  bomb,  and  your  verdict  should  be 
not  guilty." 

We  respectfully  submit  and  insist  that  this  instruction  is 
absolutely  correct  in  its  enunciation  of  the  law,  was  appli- 
cable to  the  issue  before  the  jury  and  the  evidence  which 


2S4 

had  been  adduced  upon  that  issue,  and  should  have  been 
given.  We  insist  that  no  vahd  excuse  can  be  urged  for 
the  refusal  to  give  this  instruction  as  asked.  If,  in  point  of 
fact,  the  jury  should  have  been  led,  under  this  instruction, 
if  given,  to  believe  from  the  evidence  that  the  bomb  at 
the  Hay  market  was  thrown  by  some  one  in  that  gather- 
ing, without  the  knowledge,  aid,  counsel,  procurement, 
encouragement  or  abetting  of  the  defendants,  or  any  of 
them,  then  or  theretofore  given,  and  solely  because  of  his 
own  passion,  fear,  hatred,  malice  or  ill-will,  or  in  pursu- 
ance of  his  view  of  the  right  of  self-defense,  then  the 
defendants  would  not  have  been  liable  for  the  results  of 
such  bomb,  and  the  jury  should,  in  that  event,  have  found 
a  verdict  of  not  guilty;  and  should  have  been  instructed  so 
to  do.  The  court  erred,  we  submit,  in  refusing  to  give  this 
instruction.  It  called  particular  attention  of  the  jur}'  to  the 
evidence  bearing  upon  the  character  of  the  meeting  which 
was  then  and  there  being  held,  and  to  the  evidence  bearing 
upon  the  action  of  the  police  in  attempting  the  dispersal 
of  that  meeting,  and  stated  correctly  the  law  under  the 
constitution,  as  to  the  right  to  peaceable  assemblage  and 
discussion  of  alleged  grievances.  These  were  matters 
that,  in  the  light  of  the  evidence  in  this  record,  the  plaint- 
iffs in  error  had  a  right  to  have  considered  by  the  jury. 
All  these  matters  were  matters  which  might  furnish  to  the 
jury  some  suggestion  explanatory  of  the  conduct  of  the 
unknown  bomb-thrower,  and  tending  to  show  that  his 
action  might  have  resulted  from  his  own  disposition  and 
the  special  circumstances  of  the  hour,  and  not  at  all  from 
the  advice,  or  by  the  aid  or  procurement  of  the  plaintiffs 
in  error.  The  law  was  correctly  stated  in  this  instruction; 
it  presented  correctly  an  hypothesis  consistent  with  the 
theory  of  the  innocence  of  the  defendants,  and  explain- 
ing the  alleged  offense;  and  it  should  unquestionably  have 


285 

been  given  as  asked.  We  submit  that  the  refusal  to  give 
it  was  error. 

An  affidavit  of  John  Philip  Deluse,  of  Indianapolis,  was 
filed  in  support  of  the  motion  for  a  new  trial  (i  A.,  28; 
O,  81),  in  which  he  states  that  in  the  beginning  of  May, 
1886,  a  man  entered  his  saloon  in  Indianapolis,  and  while 
there  inquired  as  to  how  the  labor  movement  stood  in 
that  city.  Being  told  that  everything  was  quiet  there,  he 
stated  that  he  came  from  New  York,  and  believed  he 
would  go  to  Chicago,  and  then,  pointing  to  his  satchel, 
which  he  held  in  his  hand,  and  which  seemed  to  be  heavy, 
he  stated:  "You  will  hear  of  some  trouble  there  very 
soon.  I  have  got  something  here  that  will  work.  You 
will  hear  of  it."  As  he  was  passing  out  of  the  door  he 
stopped,  held  up  his  satchel,  and  said  again:  "  You  will 
hear  of  it  soon."  Deluse  says  that  the  incident  made  no 
special  impression  upon  his  mind  at  the  moment,  but  that 
when  a  day  or  two  afterwards  the  news  of  the  explosion 
of  the  bomb  came,  he  immediately  put  the  two  things 
together  and  reached  the  conclusion  that  this  stranger 
was  the  bomb-thrower. 

Now,  it  be  may  be  said  that  this  story  is  improbable. 
Yet  it  is  not  impossible — it  is  not  even  unreasonable,  and 
it  may  be  the  fact — that  the  bomb  at  the  Haymarket  was 
thrown  by  some  one  who  was  an  entire  stranger  to  these 
plaintiffs  in  error,  only  two  of  whom  were  present  at  the 
time  of  the  explosion  of  the  bomb,  and  that  it  was  thrown  by 
some  one  not  at  all  influenced  by  their  advice  or  prompted 
by  their  suggestions.  Nay,  it  may  have  been  thrown  by 
some  one  who  was  an  enemy  of  theirs,  and  not  at  all  in 
their  counsel.  These  suggestions  serve  to  show  the 
humanity  and  wisdom  of  the  rule  for  which  we  contend, 
that  the  state  must  be  required  by  its  proof  to  connect  the 
alleged  accessories  with  the  principal  felon  by  legal  proof. 


286 

before  they  can  ask  the  conviction  of  the  alleged  acces- 
sories, and  serves  to  illustrate  the  propriety  of  instruction 
13,  erroneously  refused. 

IX.      The    Instruction  given    by   Judge    Gary 

SUA    MOTU. 

After  having  given  the  instructions  in  behalf  of  the 
people,  followed  by  those  given  on  behalf  of  the  defend- 
ants, the  presiding  judge  of  his  own  motion  gave  an  in- 
struction, which  hy  its  terms,  could  not  but  operate  to 
supersede  all  other  instructions  given  in  the  case.  The 
instruction  referred  to  was  in  the  following  language 
(A.,  23,  24;  O,  35) :  "  The  statute  requires  that  instruc- 
"  tions  by  the  court  to  the  jury  shall  be  in  writing,  and 
"  only  relate  to  the  law  of  the  case.  The  practice  under 
"  the  statute  is  that  the  counsel  prepare,  on  each  side,  a 
"  set  of  instructions,  and  present  them  to  the  court,  and  if 
"  approved  to  be  read  by  the  court  as  the  law  of  the  case. 
"  It  may  happen,  by  reason  of  the  great  number  pre- 
"  sented,  and  the  hurry  and  confusion  of  passing  on  them 
"  in  the  midst  of  the  trial,  with  a  large  audience  to  keep 
"  in  order,  that  there  may  be  some  apparent  inconsistency 
'•  in  them,  but  if  they  are  carefully  scrutinized  such  incon- 
"  sistencies  will  probably  disappear.  In  any  event,  how- 
''  ever,  the  gist  and  pith  of  all  is,  that  if  advice  and  en- 
"  couragement  to  murder  was  given;  if  murder  was  done 
"  in  pursuance  of  and  materially  induced  by  such  ad- 
"  vice  and  encouragement,  then  those  who  gave  such 
"  advice  and  encouragement  are  guilty  of  the  murder. 
"  Unless  the  evidence,  either  direct  or  circumstantial,  or 
"  both,  proves  the  guilt  of  one  or  more  of  the  defend- 
"  ants  upon  this  principle  so  fully  that  there  is  no  reason- 
"  able   doubt  of  it,   your   duty   to   theai   requires   you   to 


287 

■"  acquit  them;  if  it  does  so  prove,  then  your  duty  to  the 
"  state  requires  you  to  convict  whoever  is  so  proved 
'•  guilty.  The  case  of  each  defendant  should  be  consid- 
^'  ered  with  the  same  care  and  scrutiny  as  if  he  alone 
'•  were  cm  trial.  If  a  conspirac}-,  having  violence  and 
"  murder  as  its  object,  is  fully  proved,  then  the  acts 
-'■  and  declarations  of  each  conspirator  in  furtherance 
"  of  the  conspiracy  are  the  acts  and  declarations  of  each 
•'  one  of  the  conspirators.  But  the  declarations  of  any 
"  conspirator,  before  or  after  the  4th  of  May,  which  are 
*'  merely  narrative  as  to  what  had  been  or  would  be  done, 
-'  and  not  made  to  aid  in  carrying  into  effect  the  object  of 
"  the  conspiracy,  are  only  evidence  against  the  one  who 
"  made  them.  What  are  the  facts  and  what  is  the  truth 
■"  the  jury  must  determine  from  the  evidence,  and  from 
"  that  alone.  If  there  are  any  unguarded  expressions  in 
*'  an)'  of  the  instructions,  which  seem  to  assume  the  exist- 
"  ence  of  any  facts,  or  to  be  any  intimation  as  to  what  is 
"  proved,  all  such  expressions  must  be  disregarded,  and 
-'  the  evidence  only  looked  to  to  determine  the  facts." 

Wnatever  may  be  said  as  to  the  effort  of  the  court 
here,  in  connection  with  a  brief  summar}'  of  the  State's 
formal  instructions,  to  epitomize  and  again  present  to  the 
jury  the  theory  suggested  by  the  court  for  the  trial  of  the 
cause,  in  connection  with  his  ruling  upon  our  objection 
interposed  during  Waller's  examination,  it  will  hardly  be 
pretended  that  in  the  above  instruction  the  court  made 
any  attempt  to  present,  or  summarize,  the  instructions 
given  in  behalf  of  the  defendants.  For  example,  there  was 
no  suggestion  in  this  instruction,  of  the  rule  that  the  jury 
were  bound  to  reconcile  the  facts,  if  reasonably  possible, 
with  any  hypothesis  of  innocence  advanced.  Neither  does  it 
present  the  substance  of  the  instruction  for  the  defendants, 
commencing    near    the    bottom    of     i    A.,    21.     Neither 


did  it  present  the  law  in  reference  to  what  constitutes  a 
reasonable  doubt.  We  cite  these  points  simply  as  illus- 
trations. The  instruction  in  fact  merely  attempting  to 
summarize  the  instructions  given  for  the  state,  it  was 
exactly  equivalent  to  saying:  The  instructions  given  for 
the  defendants  may  seem  to  conflict  with  those  given  for 
the  state,  but  the  conflict  is  only  apparent,  and  in  fact  the 
whole  law  is  as  given  for  the  state,  namely:  and  then  re- 
peating the  substance  of  the  state's  instructions. 

But  beyond  this,  the  instruction,  we  submit,  was  abso- 
lutely erroneous  in  the  principal  proposition  laid  down.  It 
will  not  be  denied,  we  think,  that  a  man  might  advise  one 
murder,  or  the  perpetration  of  a  homicide  under  certain 
circumstances;  that  a  person  listening  thereto  might  be 
encouraged  by  such  advice  and  materially  induced  thereby 
to  go  out  and  commit  a  totally  different  murder,  or  a  to- 
tally different  homicide.  For  example,  it  might  be  that 
the  defendants  advised  resistance  to  an  armed  attack  by 
the  police  to  the  extent  of  homicide.  A  party  listening 
to  such  advice  might  go  out,  and,  inflamed  and  encour- 
aged thereby,  kill  a  policeman  who  was  at  the  time  in  the 
peace  of  the  state.  It  will  not  be  pretended  that  under 
such  circumstances  the  mere  giving  of  advice  to  murder 
generally,  or  to  do  one  particular  murder,  would  make 
the  party  responsible  for  a  specific  murder  other  than  that 
covered  by  the  advice,  however  much  the  murderer 
might  be  influenced  thereby.  Yet  that  is  the  scope  of 
this  instruction,  wherein  the  court  says:  "  If  advice  and 
"  encouragement  to  murder  [upon  whom?  where?  when? 
"by  what  means?]  was  given,  if  murder  was  done 
"  in  pursuance  of  and  materially  induced  by  such  advice 
"  and  encouragement,  then  those  who  gave  such  advice 
"  and  encouragement  are  guilty  of  the  murder."  Tiie 
impropriety   of    the   giving   of    this   instruction,  and   par- 


289 

ticularly  the  giving  of  it  at  the  close  of  the  defendant's 
instructions,  whereby  any  impression  that  the  defendant's 
instructions  might  have  made  upon  the  minds  of  any  of  the 
jury  was  likely  to  be  obliterated,  is  obvious  in  the  light  alike 
of  reason  and  authority.  This  court,  in  J/^jSTzyew  v.  Moicy, 
60  111.,  32,  used,  with  reference  to  a  final  instruction  given 
on  the  court's  own  motion,  and  attempting  to  epitomize 
the  entire  law  of  the  case,  the  following  language: 

"  The  counsel  for  appellant  insists  that  the  court  erred 
"  in  orally  qualifying  or  superseding  the  instructions 
"  already  given  by  the  remark  prefacing  the  giving  of 
"said  instruction  [which  remark  was  as  follows:  'I  take 
"  upon  myself  to  concentrate  all  there  is  in  these  instructions 
"  into  this  one,  as  embodying  all  the  law  necessary  for 
"  the  case.']  The  bill  of  exceptions  does  not  state  that 
"  the  remark  was  orally  made,  though  it  is  fairly  infer- 
"  able  that  it  was.  If  oral,  it  was  in  violation  of  the 
"  the  spirit  of  the  statute,  because  it  would  have  the  direct 
"  effect,  though  directed  to  counsel  in  the  hearing  of 
"  the  jury,  to  induce  the  jury  to  disregard  all  the  other 
"  instructions,  and  regard  only  that  given  by  the  court  of 
"  his  own  motion,  '  as  embodying  all  the  law  necessary 
"  for  the  case.'  If  in  writing,  and  directed  to  the  jury, 
"  it  would  operate  as  a  supersedure  of  all  the  other  in- 
"  structions;  and  the  one  given  of  the  court's  own  motion 
"  did  not  embody  all  the  law  necessary  for  the  case,  be- 
"  cause  it  withdrew  from  the  jury  all  consideration  of  the 
"  question  respecting  the  issuing  and  acceptance  of  the 
"  receipt  given  in  evidence.  The  evidence  upon  that 
"  point  was  properly  before  the  jury,  and  the  defendant 
"  had  the  clear  right  to  have  it  passed  upon  by  the  jury 
"  under  the  instructions  which  the  court  had  given  as  ap- 
"  plicable  to  it." 


290 


X.  The  Instruction  as  to  the  Form  of  the  Verdict. 
(I  A.,  24;   0,37.) 

"  If  all  of  the  defendants  are  found  guilt}'  the  form  of 
"  the  verdict  will  be: 

"  We,  the  jury,  find  the  defendants  guilty  of  murder  in 
manner  and  form  as  charged  in  the  indictment,  and  fix 
"  the  penalty. 

"  If  all  are  found  not  guilty  the  form  of  the  verdict 
"  will  be: 

'•  We,  the  jur}-,  find  the  defendants  not  guilt)'. 

••  If  part  of  the  defendants  are  found  guilty  and  part 
"  not  guilty,  the  form  of  the  verdict  will  be: 

"We,  the  jury,  find  the  defendant  or  defendants  (nam- 
"  ing  him  or  them)  not  guilty;  we  find  the  defendant  or 
"  defendants  (naming  him  or  them)  guilty  of  murder  in 
"  manner  and  form  as  charged  in  the  indictment,  and  fix 
"  the  penalty,"  which  was  duh'  excepted  to. 

As  to  this  instruction,  our  objection  is  that  it  was  fa- 
tally defective  in  that  it  left  to  the  jury  absolutel}'  no  al- 
iernative  as  to  each  and  every  one  of  the  plaintiffs  in  er- 
ror between  a  verdict  of  not  guilty  and  a  verdict  of  guilty 
of  murder  in  manner  and  form  as  charged  in  the  indict- 
ment. 

Now,  it  will  not  be  denied  but  that  the  jury  were  en- 
titled, if  in  their  judgment  the  evidence  so  warranted,  to 
find  that  the  offense  committed  was  not  murder,  but  was 
a  lower  grade  of  homicide.  In  fact,  after  the  jury  went 
from  the  bar,  the  court,  upon  the  instance  of  the  plain- 
tiffs in  error,  permitted  the  preparation  of  an  instruction 
embodying  this  principle  of  law,  and  thereafter  sent  for 
the  jury,  and  upon  their  return  into  court,  gave  this  in- 
struction [I  A.,  25;  O,  38,  29)'->   l^ut  the  giving   of  this 


2Cf\ 

instruction  at  the  time  and  under  the  circumstances  it  was 
given,  without  giving  to  them  an  instruction  with  refer- 
ence to  the  form  of  the  verdict,  should  they  find  any  of 
the  defendants  guilty  of  manslaughter,  certainly  did  not 
serve  to  cure  the  error  in  the  instruction  as  to  the  form 
of  the  verdict  above  set  forth.  Let  us  take  by  way 
of  illustrating  our  position,  the  case  of  Mr.  Neebe.  In 
our  view  there  was  no  evidence  whatever  to  justify 
his  being  held  to  answer  to  this  indictment  upon  the 
evidence  adduced  by  the  state,  but  in  the  presence  of 
the  jury,  the  court  had  refused  our  motion  for  an  instruc- 
tion in  Mr.  Neebe's  favor,  and  had  argued  the  circum- 
stantial evidence  supposed  .to  tend  in  some  measure  to 
criminate  him,  and  thereupon  refused  to  allow  his  dis- 
charge. Having  done  all  this  in  the  presence  of  the  jury, 
he  finally  follows  it  up  by  an  instruction  which  in  effect 
said  to  them:  "  Gentlemen  of  the  jury,  you  must  either 
"  acquit  Mr.  Neebe,  or  you  must  find  him  guilty  of  mur- 
"  der  in  manner  and  form  as  charged  in  the  indictment." 
We  cite  Mr.  Neebe's  case  simply  for  the  purpose  of 
illustrating  the  vice  of  the  instruction,  and  not  because  it 
is  more  vicious  in  his  case  than  in  the  case  of  any  other  of 
the  plaintiffs  in  error.  '  When  the  court  undertakes  upon 
its  own  motion  to  give  an  instruction  as  to  the  form  of 
the  verdict  in  a  capital  case,  the  instruction  must  be  cor- 
rect in  every  particular,  such  that  in  the  nature  of  things 
it  could  not  have  wrought  prejudice  to  the  defendants. 


XI.     Theory  of  the  Instructions  as  a  Whole. 

A  brief  consideration  of  the  instructions  given  on  be- 
half of  the  state  as  a  whole  is  proper  at  this  juncture.  Do 
they,  when  read  together,  without  reference  to  the  special 
criticisms    above    urged,    present    a    fair,   just    and    full 


292 

view  of  the  law  applicable  to  the  case,  so  as  to  clearly 
and  intelligently  direct  the  jury  in  their  investigation  and 
determination  of  the  issue  submitted  to  them — such  a 
summary  of  the  law  as  it  was  the  duty  of  the  court  to 
present,  to  avoid  possible  injustice  to  the  accused?  Da 
they  secure  certainly  to  the  accused  the  benefit  of  every 
reasonable  doubt,  whether  arising  from  a  consideration  of 
the  evidence  offered  or  the  absence  of  evidence?  They 
should  be,  as  far  as  possible,  simple,  lucid,  consistent 
homogeneous.  They  should  not  be  contradictory  nor 
unnecessarily  involved.  They  should  be  free  from 
duplicit}-,  should  fit  the  evidence,  and  should  be  fair  to  the 
accused. 

In  the  instructions  under  consideration,  in  fact  three 
different  conspiracies,  as  to  the  object  named,  were  pre- 
sented. In  instruction  4  the  court  presented  the  hypoth- 
esis of  a  conspiracy  "  to  overthrow  the  lazv  by  force,  or 
"  to  unlawfully  resist  the  officers  of  the  law."  In  instruc- 
tion 5  the  hypothesis  was  of  "  a  conspiracy  to  over- 
"  throw  the  existing  order  of  societv,  and  to  bring  about 
"  social  revolution  by  force,  or  to  destroy  the  legal 
"  authorities  by  force  ":  while  instruction  5^  is  based  on 
the  hj'pothesis  of  a  conspiracy  "  to  excite  the  people  or 
"clas.ses  of  the  people  of  this  ciiy  to  sedition,  tumult  and 
"  riot,  to  use  deadly  weapons  against  and  take  the  lives  of 
"  other  persons,"  etc. 

Under  which  hypothesis  did  the  jury  find?  The  first 
of  instruction  4?  That  is  only  a  conspiracy  "  to  over- 
"  throw  t/ie  lazv  by  force  " — for  the  unlawful  resistance  of 
the  officers  of  the  law  suggested  is  put  disjunctively.  Can 
murder  be  predicated  upon  a  conspiracy'  "  to  overt/irozv 
"THE  LAW?"  Can  the  law  be  murdered,  so  as  to  affi.v 
the  death  penalty  to  the  offender?  Could  Fielden's  advice 
to  stab,  throttle,  resist  and  impede  the  law  be  made  the 


293 

basis  of  responsibility  for  a  murder  b}'  an  unknown  man? 
Did  these  instructions  as  a  whoXtt  fairly  present  a  homo- 
geneous, consistent  and  uncontradictory  hypothesis  upon 
which  to  rest  a  verdict  of  guilt?  But  particularly,  can 
such  instructions  as  these  be  sustained  when,  under  each 
of  the  hypotheses  presented,  conviction  is  allowed  for  the 
act  of  a  wholly  unidentified  principal,  upon  the  mere 
arbitrary  finding  by  the  jur}',  without  support  from  com- 
petent evidence,  that  the  criminal  actor  was  a  party  with 
the  plaintiffs  in  error  in  some  one  of  these  supposed  con- 
spiracies? 

Was  it  fair  to  the  accused  to  present  to  the  jury  these 
different  hypotheses  of  conspiracy  and  to  require  a  general 
verdict  of  guilty  or  not  guilty  of  "  murder  in  manner  and 
■"  form  as  charged  in  the  indictment,"  in  view  of  the  evi- 
■dence  which  had  been  allowed  to  go  to  the  jury?  Should 
not  the  jury  have  been  required  to  make  their  verdict 
special  in  view  of  that  evidence?  For  that  evidence 
tended  to  establish  three  different  conspiracies,  to  some 
of  which  the  state's  evidence  affirmatively  showed  that  the 
accused  were  not  all  parties,  /.  e.,  (i)  the  general  con- 
spiracy "to  overthrow  the  law;"  (2)  the  Monda}'  night 
conspiracy,  with  which  only  Engel,  Fischer,  and  possibly 
Lingg  were  connected;  and  (3)  the  special  conspiracy  to 
throw  the  Haymarket  bomb,  " /<?  perpetrate  the  crime,'''' 
with  which  the  state's  evidence  connected  only  Spies, 
Fischer,  and  possibly  Schwab.  With  such  diversity  of 
proof,  and  under  the  distinct  hypotheses  of  the  different 
instructions,  what  did  the  jury  in  fact  find? 

Under  a  fair  charge,  requiring  the  jury  to  designate 
what  they  found  from  the  evidence,  they  might  have  dis- 
closed that  in  their  judgment  the  evidence,  under  the  doc- 
trines announced  by  the  court,  showed  Spies  and  Schwab 
to   have   been   connected    with   conspiracies  (i)  and  (3); 


294 

Fischer  to  have  been  connected  with  conspiracies  (2)  and 
(3);  Engel  and  Lingg  with  conspiracies  (i  )  and  (2); 
Parsons  and  Fielden  with  conspiracy  (i)  alone;  and 
Neebe  with  none  of  these  conspiracies;  and  only  such 
finding  could  be  possibly  iustified  on  the  state's  own  evi- 
dence. But  upon  such  finding  no  judgment  of  guilty 
could  legally  have  been  entered  in  this  cause. 

In  O' Council  v.  R.,  11  C.  &  F.,  155,  it  was  held  that 
upon  a  count  in  an  indictment  against  eight  defendants, 
charging  one  conspiracy  to  effect  certain  objects,  a  find- 
ing that  three  of  the  defendants  were  guilty  generally; 
that  five  of  them  were  guilty  of  conspiring  to  effect  some> 
and  not  guilty  as  to  the  residue  of  these  objects,  is  bad  in 
law  and  repugnant;  inasmuch  as  the  finding  that  the 
three  were  guilty  was  a  finding  that  they  were  guilly 
of  conspiring  with  the  other  five  to  effect  all  the  objects 
of  the  conspirac}',  whereas,  by  the  same  finding  it  ap- 
pears that  the  other  five  were  guilty  of  conspiring  to 
effect  only  some  of  the  objects. 

Was  it  fair  to  the  accused  to  give  the  instruction  as  to 
the  form  of  verdict,  when  under  the  instructions  the 
court  allowed  the  conclusion  of  guilt  to  be  guessed  owl  hy 
the  jury  under  such  diverse  and  repugnant  hypotheses,- 
and  upon  such  distinct  proofs  relating  to  different  ones  of 
the  accused? 


The  Rule  Recognized  by  this  Court. 

It  will  doubtless  be  urged,  strenuously,  that  the  doc- 
trine presented  in  the  instructions  for  the  people  has 
received  the  sanction  of  this  court  in  the  cases  of  Brennan 
V.  The  People,  15  111.,  511,  and  Lamb  v.  The  People,  g6 
111.,  73;  and  it  is  proper  that  in  this  connection  we  should 
examine  those  cases.  It  is  well  settled,  that  only  as  the 
language  of  an  opinion  is  applied  to  the  facts  of  the  case 


295 

before  the  court,  can  the  true  rule  established  by  the 
decision  be  accurately  deduced.  General  expressions, 
not  directly  pertinent  to  the  case  considered,  cannot  be 
relied  on  as  announcing  a  rule  of  general  application. 

Let  us  say  here  that  with  the  rule  of  law  as  declared 
in  the  cases  now  under  review,  we  have  no  occasion  to 
differ.  That  rule,  as  interpreted  by  the  facts  in  those  cases 
respectively,  is  no  other  than  this:  that  if  two  or  more 
persons  conspire  to  do  an  unla-djfiil  act,  all  of  those  shown 
to  be  parties  to  the  conspiracy  are  responsible  for  (i)  the 
execution  of  the  act  flanned,  by  any  one  of  the  conspirators; 
or  (2),  for  the  doing  of  any  act  by  any  one  of  such  con- 
spirators which  naturally  or  necessarily  results  in  course  of  an 
^'attempt  to  execute  the  common  design;^''  on  the  doctrine 
that  such  naturally  or  necessarily  resultant  act  is  at  law 
presumed  to  be  within  the  intention  of  the  conspirators. 
There  is  not  in  the  doctrine  of  these  cases  anything  ihat 
militates  in  the  slightest  degree  against  our  contentions — 
that  if  the  act  is  an  independent  crime,  attributable  to  ihe 
unconstrained  volition  of  the  criminal  actor;  or  if  it  be  in 
fact  unadvised  by,  and  foreign  to  the  accomplishment  of 
the  general  design,  of  the  alleged  conspirators;  or  if  the 
legal  proofs  fail  to  establish  beyond  reasonable  doubt,  in 
a  case  where  the  accused  are  not  present  aiding  the  act, 
the  identity  of  the  criminal  actor  as  a  member  or  instru- 
ment of  the  alleged  conspiracy,  no  conviction  can  be 
legally  had;  because  in  every  such  case  the  evidence  fails 
to  sustain  the  averment  that  the  accused  had  "  advised, 
"  assisted,  abetted  or  encouraged  the  perpetration  of 
"  THE  crime." 

As  we  read  the  case,  our  position  was  distinctly  recog- 
nized in  Brennan  v.  People,  15  111.,  511,  where,  in  defining 
what  was  enough  to  establish  the  guilt  of  an  accessory, 
this  language  is  used: 

"  It  is  sufficient  i\\7\\.  tlicy  combined zvith  those  committing 


296 

"  ///(■  deed  to  do  an  unlawful  act.  *  *  *  If  sevsral 
"  persons  conspire  to  do  an  unlawful  act,  and  death  hap- 
"  pen  in  the  prosecution  of  the  common  object,  all  are 
"  ahke  guilty  of  the  homicide.  The  act  of  ONE  OF 
"THEM  done  in  furtherance  of  the  original  design,  is 
"  in  consideration  of  law  the  act  of  all;  and  he  who 
"  advises  or  encourages  another  to  do  an  illegal  act  is 
"  responsible  for  all  the  natural  or  probable  consequences 
"  that  may  arise  from  this  participation." 

Here  is  distinctly  recognized  the  rule  that  an  accessory 
can  be  held  guilty  onl}'  in  case  it  is  made  to  appear 
that  the  criminal  act  was  done  by  one  acting  in  conjunc- 
tion with,  and  under  the  advice  and  encouragement  of, 
the  accused;  which  would  involve  an  identification  of  the 
doer  of  the  criminal  deed,  as  connected  with  and  repre- 
senting in  the  act  the  parties  accused.  The  facts  in  that 
case  may  be  briefly  stated  for  the  purpose  of  illustrating 
this  rule.  Certain  -parties,  of  -whom  the  defendant  zvas 
one,  started  out  together  to  make  an  illegal  assault,  in  pur- 
suance of  -which  conspiracy  and  in  execution  of  ivhich  pur- 
pose the  party  who  was  the  object  of  the  assault  zvas  billed 
by  one  of  the  parties  to  the  conspiracy.  The  evidence 
showed  all  this;  and  therefore  established  indisputably  a 
case  of  direct  relationship  between  the  accused  and  the 
criminal  actor  in  the  very  act  of  the  commission  of  the 
crime.  We  understand  that  at  the  common  law  where 
parties  combine  deliberately  in  an  assault,  and  murder 
results,  all  are  guilty  as  principals.  In  the  Brennan  case 
the  defense  attempted  to  be  interposed  was  that  there  was 
no  preconcert  to  kill;  and  the  real  point  ruled  in  the  case 
was,  that  it  was  not  necessary  to  prove  such  preconcert; 
//  was  sufficient  to  show  it  was  a  conspiracy  or  agreement 
to  do  an  unlawful  act,  and  that  the  killing  zvas  a 
natural  consequence  of  the  act  agreed  to  be  done,  and 
happened  in  the  carrying  out  of  the  illegal  purpose. 


297 

The  case  of  Lamb  v.  The  People,  96  111.,  73,  was  dis- 
posed of  upon  a  totally  different  principle,  involving  the 
application  of  the  first  branch  of  our  position  supra,  the 
sole  point  ruled  in  this  case  being,  that  to  warrant  a  con- 
viction the  evidence  must  show  that  the  crime  charged 
was  naturall}'  incidental  to  the  conspiracy  proved, 
and  not  a  result  of  the  independent  volition  of  the 
criminal  actor.  It  appears  that  in  the  Lamb  case 
there  was  proved  against  the  accused  a  conspiracy  to 
commit  a  distinct  felony,  viz:  a  particular  burglary.  This 
executed,  the  stolen  goods  were  placed  in  the  custody  of 
one  of  the  conspirators  other  than  Lamb  for  safe  disposi- 
tion. As  these  goods  were  being  unloaded  at  a  pawn- 
shop, a  police  officer  who  came  up  was  killed  by  the  party 
in  charge  of  the  goods;  but  this  distinct  felony  was  com- 
mitted in  the  absence,  and  without  the  knowledge,  partici- 
pation or  advice  of  Lamb.  As  applicable  to  this  case 
disclosed  by  the  proofs,  this  court,  while  stating  broadly 
the  doctrine  of  the  liability  of  co-conspirators  for  acts 
done  ill  the  carrying  out  of  the  original  design,  yet  hold 
that  there  is  no  liability  for  a  separate  and  independent 
crime  committed  by  one  of  the  conspirators  outside  of  the 
original  agreement.  The  whole  language  of  the  case 
must  be  read  as  applicable  to  an  agreement  between 
parties  to  commit  a  certain  offense,  and  their  liability  for 
crimes  naturally  incident  to  the  principal  specific  agree- 
ment committed  by  a  party  to  the  original  conspiracy  in 
the  prosecution  thereof. 

Surely,  no  support  is  afforded  by  these  cases,  fairly 
considered,  for  the  novel  doctrines  under  which  the  con- 
viction of  plaintiffs  in  error  was  induced;  that  (to  apply 
these  doctrines  to  the  case  at  bar)  if  a  conspiracy  to  over- 
throw the  law,  or  change  the  order  of  society,  or  take  the 
lives  of  the  officers   of  the  law,  ok    unlawfully  resist  the 


298 

lawful  authorities,  or  "  to  excite  the  people  to  sedition,  tu- 
"  mult  and  riot,  to  take  the  lives  of  people,"  in  pursuance 
of  which  some  conspirator  "  advises  murder "  without 
designating^  time,  place  or  occasion  for  its  commission; 
and  if  some  of  these  conspirators  call  and  attend  a  meeting^ 
for  the  sole  purpose  op'  denouncing  an  alleged  grievance, 
and  at  such  meeting  somebody  does  murder,  all  the  con- 
spirators are  liable,  without  any  evidence  establishing  in 
any  manner  the  identity  of  the  murderer  as  a  member  of 
the  alleged  conspiracy,  or  as  advised  at  any  time  by  any 
of  the  alleged  conspirators,  the  proofs  of  the  state  affirma- 
tively showing  that  the  murder  done,  the  act  performed,  the 
cri7tie  perpetrated,  was  not  contemplated,  designed,  ad- 
vised, aided,  abetted  or  encouraged  by  anv  of  the  accused. 
Or  to  put  the  proposition  in  another  form,  without  an}' 
evidence  whatever  to  show  that  the  man  who  threw  the 
bomb  at  the  Haymarket  meeting  had  been  advised,  as- 
sisted, encouraged  or  abetted  by  the  plaintiff's  in  error  or 
any  of  them  to  throw  that  bomb  at  that  meeting.  The 
absence  of  this  proof  connecting  the  bomb-thrower  as  a 
cognizable  individual  with  the  accused  left  a  gap  in  the 
case  of  the  state  which  the  law  required  to  be  bridged. 
It  was  si.nply  leaped  by  the  whole  crowd,  the  court  in  the 
lead.  It  serves  to  illustrate  how  irresistible  is  the  sweep- 
ing current  of  an  excited  public  opinion,  and  how  under 
it,  as  in  a  panic  in  an  audience  at  the  cry  of  fire,  the  cool- 
est seem  to  lose  their  heads. 

Such  were  the  ruling  and  instructions  under  which  the 
plaintiffs  in  error  were  required  in  this  cause  to  meet  the 
issue  involving  their  lives.  Let  us  now  consider  under 
what  rulings  the}-  were  required  to  select  the  tribunal, 
which  was  to  pass  upon  the  question  of  their  guilt  or  in- 
nocence, and  the  character  of  the  jury  selected  under 
these  rulings,  to  whom  the  issue  upon  which  thev  were 
arraigned  was  submitted. 


299 


BB.     ERRORS  IN  CONNECTION   WITH   THE  EMPANELING   OF 
THE  JURY. 

I.     THE  LAW  RELATING  TO  THE   QUALIFICATIONS 
OF   JURORS. 

a.     Constitutional  Provisions. 

The  constitution  of  the  United  States,  6th  article  of  the 
amendments,  provides  as  follows: 

"  In  all  criminal  prosecutions  the  accused  shall  enjoy 
"  the  right  to  a  speedy  and  public  trial  by  an  impartial 
'■'■Jury  of  the  state  and  district  wherein  the  crime  shall 
"  have  been  committed." 

The  constitution  of  this  state  of  1818,  article  8,  section 
9,  in  the  last  clause,  provides: 

"  In  prosecutions  by  indictment  or  information  the  ac- 
"  cused  hath  a  right  to  a  speedy  public  trial  by  an  nn- 
'■'■  far tial jury  of  the  vicinage." 

The  constitution  of  18^8,  article  13,  section  9,  pro- 
vides: 

"  That  in  all  criminal  prosecutions  the  accused  hath  a 
"  right  to  be  heard  by  himself  and  counsel,  *  *  * 
"  and  in  prosecutions  by  indictment  or  information,  a 
"  speedy  public  trial  by  an  impartial  jury  of  the  county 
"  and  district  wherein  the  offense  shall  have  been  com- 
"  mitted." 

The  constitution  of  this  state,  1S70,  article  2,  section  9, 
provides: 

"  In  all  criminal  prosecutions  the  accused  shall  have  the 
"  right  to  appear  and  defend  in  person  and  by  counsel, 
"  *  *  *  and  a  speedy  public  trial  by  an  imfarllal 
'■'■jury  of  the  county  or  district  in  which  the  offense  is  al- 
"  leged  to  have  been  committed." 


300 

Therefore  we  have,  all  alike  in  their  requirements,  the 
constitution  of  the  United  States,  the  constitutions  of  Illi- 
nois of   1818,  of   1848  and  the  new   constitution   of   1870. 

No  statute  attempting  to  prescribe  the  qualifications  of 
jurors  with  reference  to  their  opinions  was  ever  passed  in 
the  State  of  Illinois  until  after  the  adoption  of  the  consti- 
tution of  1S70,  but  the  matter  of  such  qualifications  was 
left  entirely  to  the  decision  of  the  courts,  pursuant  to  the 
rules  established  by  the  common  law  and  the  law  of  this 
•country,  under  the  United  States  constitution  and  those 
■of  the  various  states  of  the  Union. 


i).     Construction  of  the  meaning  of  the  Constitu- 
tion OF  THE  United  States  as  to  what  constitutes 

AN    impartial   jury. 

The  trial  of  Aaron  Burr,  for  treason,  held  at  Richmond, 
in  the  Circuit  court  of  the  United  States,  in  the  summer 
■of  1807,  presents  the  ablest  discussion  and  the  clearest 
■construction,  by  the  highest  authority,  of  the  meaning  of 
the  constitution  of  the  United  States  as  to  what  constitutes 
•an  impartial  jury.  The  circumstances  which  led  to  the 
trial  of  Aaron  Burr  were  somewhat  similar  in  their 
notoriety  to  the  case  at  bar.  Burr  had  organized  an 
expedition  for  conquest  south-west  of  the  United  States, 
and  perhaps  embracing  New  Orleans  within  them;  the 
newspapers  of  the  time  were  full  of  the  details  of  this 
■expedition,  and  every  man  of  intelligence  had  read  the 
papers  on  that  subject,  and  most  of  them  had  formed  an 
•opinion  of  greater  or  less  fixedness  and  weight.  On 
Monda)^  August  10,  1807,  the  jurors  were  summoned 
into  court,  and  an  examination  of  them  had,  by  the  able 
attorneys  engaged  in  that  cause.  Some  of  these  jurymen 
were  rejected  for   cause,  and   others    were   held   over  for 


argument  and  the  decision  ol  the  court.  After  a  very 
able  argument  by  Mr.  Martin,  Mr.  Botts,  Mr.  McCrea,. 
Mr.  Wirt,  Mr.  Hay,  Mr.  Wyckam  and  Mr.  Randolph, 
the  chief  justice,  Marshall,  decided  the  question  as 
follows: 

"  The  great  value  of  a  trial  by  jury  certainly  consists 
"  in  its  fairness  and  impartiality.  Those  who  most  prize 
"  the  institution  prize  it  because  it  furnishes  a  tribunal 
"  which  may  be  expected  to  be  uninfluenced  by  any  bias 
"of  the  mind.  I  have  always  conceived,  and  still  con- 
"  ceive,  an  impartial  jury,  as  required  by  the  common  laWy 
"and  as  secured  by  the  constitution,  must  be  composed  of 
"men  who  will  fairly  hear  the  testimony  which  may  be 
"  offered  to  them,  and  bring  in  their  verdict  according  to 
"  that  testimon}'  and  according  to  the  law  arising  on  it. 
"  This  is  not  to  be  expected,  certainly  the  law  does  not 
"  expect  it,  where  the  jurors,  before  they  hear  the  testi- 
"  mony,  have  deliberately  formed  and  delivered  an  opinion 
"that  the  person  whom  they  are  to  try  is  guilty  or  inno- 
"  cent  of  the  charge  alleged  against  him.  The  jury 
"  should  enter  upon  the  trial  with  minds  open  to  those 
"  impressions  which  the  testimony  and  law  of  the  case 
"  ought  to  make,  not  with  those  preconceived  opinions 
"which  will  resist  those  impressions.  All  the  provisions 
"of  the  law  are  calculated  to  obtain  this  end. 

"  Why  is  it  that  the  most  distant  relative  of  a  party 
"cannot  serve  upon  his  jury?  Certainly  the  single  cir- 
"  cumstance  of  relationship,  taken  in  itself,  unconnected 
"  with  its  consequences,  would  furnish  no  objection.  The 
"  real  reason  of  the  rule  is,  that  the  law  suspects  the  rela- 
"tive  of  partiality;  suspects  his  mind  to  be  under  a  bias 
"  which  will  prevent  his  fairly  hearing  and  fairly  deciding 
"  on  the  testimony  which  may  be  offered  to  him.  The 
"end  to  be  obtained  is  an  impartial  jury;  to  secure  this 


302 

'  end,  a  man  is  prohibited  from  serving  on  it  whose 
'  connection    with    a    part}'    is    such    as    to    induce    sus- 

•  picion  of  partiality.  The  relationship  may  be  remote; 
'the  person  ma}-  never  have  seen  the  party;  he  may  de- 
'  clare  that  he  feels  no  prejudice  in  the  case,  and  yet  the 
'law  cautiously  incapacitates  him  from  serving  on  the  I'ury, 
'because  it  suspects  prejudice;  because  in  general  a  per- 
'  son  in  a  similar  situation  would  feel  prejudice.  It  would 
'be  strange  if  the  law  were  chargeable  with  the  inconsist- 
'  enc}^  of  carefully  protecting  the  end  from  being  defeated 
'  by  particular  means,  and  leaving  it  to  be  defeated  by  other 
'means.  It  would  be  strange  if  the  law  would  be  so 
'  solicitous  to  secure  a  fair  trial  as  to  exclude  a  distant,  un- 
'  known  relative  from  the  jur}',  and  yet  be  totally  regard- 
'  less  of  those  in  whose  minds  feelings  existed  much  more 
'  unfavorable  to  an  impai'tial  decision  of  the  case.  It  is 
'  admitted  that  where  there  are  strong  personal  preju- 
'  dices,  the  person  entertaining  them  is  incapacitated  as  a 
■juror,  but  it  is  denied  that  fixed  opinions  respecting  guilt 

•  constitutes  a  similar  incapacity.  Why  do  personal  preju- 
' dices  constitute  a  just  cause  of  challenge?  Solely  because 
■the  individual  who  is  under  their  influence   is  presumed 

•  to  have  a  bias  on  his  mind,  which  will  prevent  an  impar- 

•  tial  decision  of  the  case  according  to  the  testimony. 
He  may  declare  that,  notwithstanding  these  prejudices, 
he  is  determined  to  listen  to  the  evidence  and  be  gov- 
erned by  it;  but  the  law  will  not  trust  him.  Is  there 
less  reason  to  suspect  him  who  has  prejudged  the  case 
and  has  deliberately  formed  and  delivered  an  opin- 
ion upon  it?  Such  a  person  may  believe  that  he 
will  be  regulated  by  the  testimony,  but  the  law  sus- 
pects him,  and  certainly  not  without  reason.  He  will 
listen  with  more  favor  to  that  testimony  which  confirms 
than  to  that  which  would  change  his  opinion.       It  is  not 


"  to  be  expected  he  will  weigh  evidence  or  argument 
"  as  fairly  as  a  man  whose  judgment  is  not  made  up  in  the 
"  case.  It  is  for  this  reason  that  a  juror  who  has  once  ren- 
"  dered  a  verdict  in  a  case,  or  who  has  been  sworn  in  a 
"  jury  which  has  been  divided,  cannot  again  be  sworn  on 
"  the  same  case.  He  is  not  suspected  of  personal  preju- 
"  dices,  but  he  has  formed  and  delivered  an  opinion,  and  is, 
"  therefore,  deemed  unfit  to  be  a  juror  in  the  case.  *    *   * 

"  In  reflecting  upon  this  subject,  which  I  have  done 
^'  since  the  adjournment  of  yesterday,  my  mind  has  been 
"  forcibly  impressed  in  contemplating  the  question  pre- 
"  cisely  in  its  reverse.'  If,  instead  of  a  panel  composed 
"  of  gentlemen  who  had  almost  unanimously  formed,  and 
^'  publicly  delivered,  an  opinion  that  the  prisoner  was 
■"  guilty,  the  marshal  had  returned  one  composed  of  per- 
"  sons  who  had  openly  and  publicly  maintained  his  inno- 
"  cence,  and  who  insist  that,  notwithstanding  all  the  tes- 
'•  timony  in  the  possession  of  the  public,  they  had  no 
"  doubt  that  his  designs  were  perfectly  innocent;  who 
"  had  been  engaged  in  repeated,  open  and  animated 
•"  altercation  to  prove  him  innocent,  and  that  his  objects 
"  were  entirely  opposite  of  those  with  which  he  was 
"  charged;  would  such  men  be  considered  impartial 
"jurors?  I  cannot  believe  they  would  be  thought  so;  I 
"  am  confident  I  should  not  think  so.  I  cannot  declare  a 
"  juror  to  be  impartial  who  has  advanced  opinions  against 
^'  the  prisoner  which  would  be  cause  of  challenge  if  ad 
•"  vanced  in  his  favor." 

There  is  another  question  passed  upon  by  this  court 
which  is  material  in  the  case  at  bar,  and  that  is:  suppose 
in  the  Burr  trial  a  juryman,  from  reading  the  newspaper  or 
hearing  rumors,  had  formed  and  expressed  an  opinion, 
that  Burr  entertained  treasonable  designs  and  was  making 
treasonable  preparations,  and  arming  a  force  for  a  treason- 


304 

able  expedilion,  but  whether  or  not  he  had  committed 
the  overt  act  of  treason  the  juryman  had  not  formed  and 
expressed  an  opinion.  The  court  in  passing  upon  this 
question  decided,  in  substance,  that  mere  impressions 
founded  on  rumor  will  not  disqualify  the  juror,  but  the 
formation  of  an  opinion  which  goes  far  toward  the  decision 
of  the  whole  case  does  disqualify  him.  The  court  uses 
the  following  language: 

"  It  would  seem  to  the  court  that  to  say  that  any  man 
"  who  had  formed  an  opinion  on  anj'  fact  conducive  to 
"  the  final  decision  of  the  case  would  therefore  be  con- 
"  sidered  as  disqualified  from  serving  on  the  jury  would 
"  exclude  intelligent  and  observing  men  whose  minds 
"  were  really  in  a  situation  to  decide  upon  the  whole  case 
"  according  to  the  testimony,  and  would  perhaps  be  ap- 
"  plying  the  letter  of  the  rule  requiring  an  impartial  jury 
"  with  a  strictness  which  is  not  necessary  for  the  preser- 
"  vation  of  the  rule  itself.  But  if  the  opinion  funned 
"  be  on  a  point  so  essential  as  to  go  far  towards 
"  a  decision  of  the  whole  case,  and  to  have  a  real 
"  influence  on  the  verdict  to  be  rendered,  the  dis- 
"  tinction  between  a  person  who  has  formed  such  an 
"  opinion  and  one  who  has  in  his  mind  decided  the  whole 
"  case  appears  too  slight  to  furnish  the  court  with  solid 
"  ground  for  distinguishing  between  them.  The  qiies- 
"  tion  must  ahvays  depend  on  the  strength  and  nature  of 
"  the  opinion  which  has  been  formed.  *  *  *  The 
"  cases  put  by  way  of  illustration  appeared  to  the  court 
"  to  be  strongly  applicable  to  that  under  consideration. 
"  They  are  those  of  burglary,  of  homicide,  of  passing 
"  counterfeit  money  knowing  it  to  be  counterfeit;  cases 
"  in  which  the  intention  and  the  fact  combine  to  cor.sti- 
"  tute  the  crime. 

"  If,  in  case  of  homicide,  where  the   fact  of   killing  was 


305 

admitted  or  was  doubtful,  a  juror  should  have  made  up 
and  delivered  the  opinion  that,  though  uninformed 
relative  to  the  fact  of  killing,  he  was  confident  as  to 
malice;  he  was  confident  that  the  prisoner  had  deliber- 
ately formed  the  intention  of  murdering  the  deceased, 
and  was  prosecuting  that  intention  up  to  the  time  of 
his  death;  or  if  on  a  charge  of  passing  bank  notes 
knowing  them  to  be  counterfeit,  the  juror  had  declared 
that,  though  uncertain  as  to  the  fact  of  passing  the 
notes,  he  was  confident  that  the  prisoner  knew  them  to 
be  counterfeit,  few  would  think  such  a  person  suffi- 
ciently impartial  to  try  the  case  according  to  testimon}^ 
The  court  considers  these  cases  as  strikingly  analo- 
gous." 


c.  Interpretation  by  the  Supreme  Court  of  Illi- 
nois OF  the  Provisions  of  our  Constitutions 
Touching  the  Qualification  of  Jurors. 

Prior  to  the  adoption  of  the  constitution  of  1S70,  and, 
therefore,  prior  to  the  passage  of  any  enactment  by  the 
legislature  touching  the  qualifications  of  jurors,  with  ref- 
ference  to  their  opinions,  the  Supreme  court  of  this  state 
had  frequently  given  a  construction  to  the  provisions  of 
the  constitutions  of  1818  and  1848,  touching  the  qualifi- 
cations of  jurors. 

Among  others  may  be  noted  Ncelcy  v.  The  People 
(June  term,  1852),  13  III,  685,  where  Treat,  Chief  Just- 
ice, says: 

"  It  was  held  in  Smith  v.  Eames,  3  Scam.,  76,  that,  if  a 
"  juror  has  7nade  a  decided  opinion  respecting  the  merits 
"  of  the  controversy,  either  from  a  personal  knowledge 
"  of  the  facts,  from  the  statements  of  the  witnesses, 
"  from  the  relations  of   the   parties,  or   from   rumor,  he  is 


306 

«'- disqualified  from  trying  the  case,  if  challenged  for 
"  cause.  The  rule  was  adhered  to  in  the  case  of  Gard- 
"  ner  v.  The  People,  3  Scam.,  83;  Vennum  v.  Hai-wood, 
"  I  Oilman,  659,  and  Baxter  v.  The  People,  3  Gil.,  368, 
"  and  must  now  be  considered  as  the  settled  doctrine  of 
"■  ihis  court. 

"  Applying  this  test  to  the  present  case,  the  jurors  were 
"  clearly  incompetent,  and  the  court  properh^  allowed  the 
"  challenge  for  cause.  Each  of  the  jurors  had  formed  a 
"  definite  opinion  as  to  the  guilt  or  innocence  of  the  pris- 
"  oner,  based  upon  information  as  to  the  facts  of  the  case, 
"  which  he  believed  to  be  true.  His  opinion  was  of  a 
"  -positive  and  not  a  hypothetical  character.  He  would 
"  have  entered  the  jur3'-box  with  ^  fixed  opinion  as  to  the 
'•  qnestion  to  be  determined,  which  would  have  controlled 
"  his  action  as  a  juror,  unless  the  testimon}-  disclosed  a 
"  state  of  facts  material!}'  different  from  what  he  already 
"  believed  them  to  be." 

The  next  case  to  which  we  call  attention  is  that  of 
Gray  v.  The  People,  26  111.,  344  (April  term,  1861), 
which  is  a  decision  under  the  constitution  of  1848. 
Breese,  Justice,  in  delivering  the  opinion,  used  the  fol- 
Ibwing  language: 

"  It  is  objected  that  the  challenge  for  cause  of  a  juror, 
"•  William  H.  Anderson,  should  have  been  allowed.  A 
"critical  examination  has  satisfied  us  this  is  a  good  point. 
"This  juror,  in  his  examination,  stated  that  he  had  read 
'•  about  the  case  in  the  papers,  that  he  did  not  know  the 
"  defendants,  that  he  believed  the  reports  that  there  was 
"  a  house-breaking;  if  these  defendants  are  the  persons 
"  named  in  the  newspapers,  has  an  opinion  as  to  their 
"  guilt  or  innocence.  In  the  papers  one  of  the  per- 
"  sons  named  may  have  been  Sihis  Gray;  and  if  it  should 
"turn  out  that  Silas  Gray   was  one  of    the  defendants, 


307 

"  should  have  an  opinion  as  lo  their  guilt  or  innocence; 
"  does  not  know  that  Silas  Gray  is  one  of  the  defendants, 
"  and  has  no  opinion  of  the  guilt  or  innocence  of  the  de- 
"  fendants.  This  juror,  with  others  objected  to,  de- 
"  clared  he  had  not  formed  or  expressed  an  opinion  of  the 
"  guilt  or  innocence  of  the  defendants;  that  he  had  no 
"  bias  or  prejudice  upon  his  mind,  and  could  give  the 
"  defendants  a  fair  trial,  according  to  the  law  and  the  evi- 
"  dence. 

"  This  possibly  might  be  so,  but  he  declared  in  his  ex- 
"  amination  that  he  believed  the  statements  of  the  news- 
"  papers  that  there  had  been  a  housebreaking,  and  if  the 
"  prisoners  were  the  persons  named  in  the  newspapers,  he 
"  had  an  opinion  of  their  guilt  or  innocence.  He  has 
'■^formed  an  opinion,  if  it  should  turn  out  that  one  of  the 
"  defendants  was  Silas  Gray. 

"  These  opinions  are  not  hypothetical  if  the  newspaper 
"statements  were  true,  but  he  says  he  believed  those 
"  statements. 

"  This  court  said,  in  the  case  of  Smith  v.  Eames  (3 
"  Scam.,  80):  '  If  the  opinion  of  the  Juror  is  positive, 
"  though  founded  on  rumor,  and  not  hypothetical,  he  is 
"  disqualified.'  And  this  has  been  adhered  to  in  criminal 
"  cases.      [Gardner  V.  The  People,  id.,  88.) 

"  The  prisoner  ought  not  to  be  forced  to  encounter  a 
"  pre-existing  opinion,  deliberately  formed  on  statements 
"  believed  to  be  true,  and  which  he  would  be  required  to 
"  remove.  Had  the  witness  said  he  neither  believed 
"  nor  disbelieved  the  statement,  he  would  have  been  com- 
"  petent." 

In  Collins  v.  The  People  (September  term,  1868),  48 
111.,  146,  delivering  the  opinion  of  the  court,  Walker, 
Justice,  says: 

"  It  is  insisted  that  the  court  below  erred  in  refusing  to 


allow  the  challenges  of  plaintiffs  in  error  to  a  number  of 
jurors,  comprising  a  part  of  the  panel  that  tried  him. 
l^hese  jurors  stated  that  they  had  heard  of  the  circum- 
stances of  the  difficulty;  that  they  believed  the  state- 
ments, and  upon  these  statements  had  fixed  opinions  as 
to  the  merits  of  the  case,  such  as  would  require  evidence 

■  to    remove   or   change,  but  that  the  opinion  could    be 

■  changed   by  sufficient  evidence;  but  that    they  had  no 
•  prejudice  against   the  accused,  and  they  believed   they 

■  could  render  a  fair   and   impartial  verdict  according  to 

■  the  evidence. 

"  These  are  substantially  the  statements  of  some  five  of 
'  the  jurors  who  tried  the  case,  and  were  the  ground  of 
'  challenge  b}'  plaintiffs  in  error,  but  which  were  disal- 
'  lowed  by  the  court  trj'ing  the  case  in  the  court  below, 
'  and  that  ruling  is  assigned  as  one  of  the  errors  in  the 
'  record  brought  to  this  court. 

"  It  has  been  repeatedly  held  by  this  court,  that  if  a 
'  juror  has  a  decided  opinion  respecting  the  merits  of  the 
'  controversy,  either  from  a  personal  knowledge  of  the 
'  facts,  from  the  statements  of  witnesses,  from  the  rela- 
'  tion  of  the  parties,  or  from  rumor,  he  is  disqualified  from 
'  trying  the  case,  if  challenged  for  cause  (^citing,  among 
'  cases,  Gray  v.  The  People,  26  111.,  344).  These  cases 
'  must  govern  this  case.  A  prisoner  should  never  be 
'  required  to  encounter  a  pre-existing  opinion  deliberately 
^formed  which  the  juror  believes  is  true,  and  which  the 
•'  prisoner  would  be  obliged  to  overcome.  When  tried  by 
•'  such  jurors,  he  cannot  be  said  to  have  had  a  fair  trial, 
■'  unless  he  choose  to  permit  him  to  act  in  his  case.  He 
•'  has  a  right  to  be  tried  by  men  who  are  wholly  impartial, 
"  without  prepossession  or  prejudice  against  him  or  his 
"  cause.  Tested  by  these  rules,  these  jurors  were  incom- 
"  petent  when  objected  to  by  the  accused,  and  the  court 


309 

*'  below  erred  in  not  allowing  the  challenges  to  these 
"  jurors." 

We  next  cite  Chicago  &  Alton  Railway  Company  v. 
Adler,  56  111.,  344  (September  term,  1870),  which  is  the 
first  case  after  the  adoption  of  the  new  constitution. 

In  that  case  the  court,  Mr.  Justice  Walker  delivering 
the  opinion,  says: 

"  It  is  first  urged  that  the  court  erred  in  refusing  to 
*'  allow  the  challenges  of  jurors  made  by  appellants. 
"  Four  of  the  jurors  who  tried  the  case  were  asked 
■"  on  their  voir  dire,  if  the  evidence  were  evenly  bal- 
*'  anced,  which  way  they  would  be  inclined  to  find,  and 
*'  each  answered  that  he  would,  in  such  case,  lean  against 
"  the  defendants,  and  one  of  them  stated  that  he  would 
"  do  so  because  the  company  was  able  to  stand  it,  and  he 
"  thought  a  private  individual  should  '  have  a  little  mite 
*'  the  advantage.' 

"  It  is  a  fundamental  principle  that  every  litigant  has 
*'  a  right  to  be  tried  by  an  itnpartial  and  disinterested 
"  tribunal.  Bias  or  prejudice  has  always  been  regarded  as 
*'  rendering  a  juryman  incompetent.  And  when  a  juror 
"  avows  that  one  litigant  should  have  any  other  ad- 
"  vantage  than  law  and  evidence  give  him,  he  declares  his 
"  incompetency  to  decide  the  case.  He  thereby  proclaims 
"  that  he  is  so  far  partial  as  to  be  unable  to  do  justice 
"  between  litigants,  or  that  he  is  so  far  uninformed,  and 
"  his  sense  of  right  is  so  blunt,  that  he  cannot  perceive 
"  justice,  or,  perceiving  it,  is  unwilling  to  be  governed 
"  by  it. 

"  The  rule  is  so  plain  and  manifest  that  the  party  claim- 
"  ing  to  recover  must  prove  his  cause  of  action,  it  is  a 
"  matter  of  surprise  that  an  adult  can  be  found  who  would 
"  not  know  that  such  is  the  common  sense  as  well  as  the 
"  common  honesty  of    the  rule.      No    ordinary  business 


3IO 

"  man  would  be  willing  that  a  claim  pressed  against 
"  him  should  be  allowed,  and  he  be  compelled  to  pay  it^ 
"  when  the  evidence  for  and  against  the  claim  was  evenly 
"  balanced.  An^  how  such  men  can  bring  themselves  to 
"  apply  a  different  rule,  as  jurors,  to  the  right  of  others,. 
"  is  incompatible  with  the  principles  of  justice.  Nor  does 
"  the  fact  that  jurors  who  avow,  under  oath,  that  they 
"  would  incline  to  favor  recovery  by  the  -plaintiff  on  evi- 
"  dence  evenly  balanced  declare  that  they  are  impartial,. 
"  in  the  slightest  degree,  tend  to  prove  their  impartiality^ 
"  Their  statement  only  tends  to  prove  that  they  are  so- 
•'  far  lost  to  a  sense  of  justice  that  they  regard  what  all 
"  right-thinking  men  know  to  be  wrong  as  just  and 
"  impartial. 

"  To  try  a  cause  by  such  a  jury  is  to  authorize  men 
"  who  state  that  they  will  lean,  in  their  finding,  against  one 
"  of  the  parties,  unjustly  to  determine  the  right  of  others, 
"  and  it  would  be  no  difficult  task  to  predict,  even  before 
"  the  evidence  was  heard,  the  verdict  that  would  be  re- 
"  turned." 

We  further  cite  Winneslieik  Insurance  Company  v. 
5'c//w//er,  60  111.,  465  (September  term,  1871).  Mr.  Justice 
Thornton,  delivering  the  opinion  of  the  court,  sa\s: 

"It  was  error  to  overrule  the  challenge  of  the  juror, 
"  Samuel  Askey.  He  said  that  he  had  some  prejudice  in 
"his  mind  against  insurance  companies  generally;  that 
"  his  prejudice  was  founded  on  the  fact  that  he  could  not 
"  comprehend  their  proceedings,  that  the  prejudice  would 
"  not  affect  his  verdict. 

"  A  man  ma_y  have  a  prejudice  against  crime;  against 
"a  mean  action;  against  dishonesty,  and  still  be  a  com- 
"  petent  juror.  This  is  proper,  and  such  prejudice  will 
"  never  force  a  jury  to  prejudge  an  innocent  and  honest 
"  man. 


311 

«  As  to  this  juror,  the  feeling  he  entertained  against 
"  insurance  companies  was  of  a  bigoted  and  reprehensible 
"  character.  It  was  not  founded  upon  any  knowledge  or 
"  information  of  conduct  which  should  condemn  them, 
"  but  merely  upon  the  fact  of  his  inability  to  understand 
"  the  proceedings  of  these  corporations. 

"  They  must  then  disclose  all  their  operations — open  to 
"  him  all  their  business  transactions — in  order  to  remove 
"  his  suspicions.  His  prejudice,  based  upon  the  reason 
"  assigned,  must  have  been  deep  seated,  and  would  neces- 
"  sarily  have  afiected  his  verdict. 

"  A  juror  should  stand  indifferent  between  the  parties. 
"  No  bias  should  influence  his  judgment  and  swerve  him 
"  from  strict  impartiality.  It  would  have  required  as 
"  much  evidence  to  remove  his  unfounded  prejudice  as 
"  to  convince  him  of  the  justice  of  the  defense. 

"  The  juror  said  that  he  had  no  more  prejudice  against 
"  this  than  any  other  company,  but  that  he  had  a  preju- 
"  dice  against  all  insurance  companies.  How  is  it  possi- 
"  ble  that  his  mind  would  not  be  biased,  and  his  determin- 
"  ation,  to  some  extent,  influenced?  It  is  not  necessary 
"  that  his  unfavorable  impressions  should  be  so  strong 
"  that  they  cannot  be  shaken  by  evidence.  It  is  sufficient 
"  if  proof  be  necessary  to  restore  his  impartiality.  A 
"  party  should  never  be  compelled  to  produce  proof  to 
"  change  a  -preconceived  opinion  or  prejudice  which  may 
"  control  the  action  of  the  juror." 

d.     The  Statute  of  187^  and  its  Construction  by 
OUR  Supreme  Court. 

Section  14,  of  chapter  78  of  the  Revised  Statutes,  and 
passed  March  12,  1874,  i^'  i"  substance,  as  follows: 

"  It  shall  be  a  sufficient  cause  of  challenge  of  a  petit 


312 

"juror  that  he  lacks  any  one  of  the  qualifications  men- 
"  tioned  in  section  two  of  this  act."  Then  there  follows 
several  other  qualifications  not  material  to  be  considered 
in  this  case.     The  second  proviso  is  as  follows: 

'■'■A?id  provided,  yurl/ie?;  that  in  the  trial  of  any  crimi- 
"  nal  cause,  the  fact  that  a  person  called  as  a  juror  has 
"  formed  an  opinion  or  impression,  based  upon  rumor  or 
"  upon  newspaper  statements  (about  the  truth  of  which 
"he  has  expressed  no  opinion),  shall  not  disqualify  him 
"  to  serve  as  a  juror  in  such  case,  if  he  shall,  upon  oath, 
"  slate  that  he  believes  he  can  fairly  and  impartially  ren- 
"der  a  verdict  therein,  in  accordance  with  the  law  and 
"  the  evidence,  and  the  court  shall  be  satisfied  of  the 
"  truth  of  such  statement." 

We  now  come  to  the  cases  under  the  statute  hereto- 
fore set  forth,  and  which  have  arisen  since  it  was  passed, 
and  in  which  this  statute  has  received  a  construction; 
and  the  essence  of  these  cases  is  that  this  stat- 
ute declares  to  be  competent  a  juryman  who  has 
a  slight  opinion,  or  an  opinion  based  upon  rumor  or 
newspaper  statements,  and  where  he  will  swear  and  the 
court  is  satisfied  that  such  opinions  will  not  affect  him  in 
the  rendition  of  a  fair  and  imoartial  verdict.  This  was 
always  the  law,  and  cases  which  have  been  cited,  in 
which  courts  have  held  that  such  jurymen  were  compe- 
tent, declare  the  law  in  accordance  with  this  construction 
of  this  statute.  The  qualifications  of  a  juror  are  fixed  by 
the  constitution.  The  constitution  is  paramount  to  the 
statute,  therefore  this  statute  musi  be  construed  in  con- 
formity with  the  constitution,  otherwise  it  is  wholly  void. 

Recurring  again  to  the  case  of  Aaron  Burr:  The 
Burr  trial  was  one  of  great  notoriety  like  the  present. 
Chief  Justice  Marshall,  in  commenting  on  this  case 
(Vol.  I,  p.  416),  says: 


313 

"  Were  it  possible  to  obtain  a  jury  without  any  pre- 
«  possessions  whatever  respecting  the  gnilt  or  innocence 
"  of  the  accused,  it  would  be  extremely  desirable  to  ob- 
*' tain  such  a  jury;  but  this  is  perhaps  impossible  and  there- 
"  fore  will  not  be  required. 

"  The  opinion  which  has  been  avowed  by  the  court  is, 
"that  light  impressions  which  maybe  fairly  supposed  to 
"  yield  to  the  testimony  that  may  be  offered;  which  may 
■"  leave  the  mind  open  to  a  fair  consideration  of  that 
"  testimony,  constitute  no  sufficient  objection  to  a  juror; 
"  but  that  those  strong  and  deep  impressions,  which  will 
•"  close  the  mind  against  the  testimony  that  may  be  offered 
■"in  opposition  to  them;  which  will  combat  that  testimony 
■"  and  resist  its  force,  do  constitute  a  sufficient  objection 
■"  to  it." 

We  believe  that  the  intention  of  the  legislature  in  pass- 
ing this  statute  was  simply  to  secure  the  law  as  Judge 
Marshall  has  declared  it  in  the  quotation  above  given. 

Let  us  see  what  the  Supreme  court  of  Illinois  have 
decided: 

The  case  of  Pliimmer  v.  TIic  People,  74  111.,  361  (Sep- 
tember term,  1874),  ^^  '^^'"^  ^""^"^  '^'^^'^  '"  which  the  act  of 
March  12,  1874,  came  under  consideration. 

In  that  case  Mr.  Justice  Scholfield,  delivering  the  opinion 
of  the  court,  says: 

"  The  juror  Broubaker,  we  do  not  think  was  competent. 
"  He  is  unable  testate  that  he  could  sit  as  an  impartial 
"juror  in  the  case.  He  was,  among  others,  asked 
"  this  question:  'You  think  that  you  have  heard  reports 
"  which  yoii  believe  to  be  true,  in  respect  to  the  defend- 
"  ants,  which  would  have  a  tendency,  in  some  degree,  to 
"  bias  your  mind  in  this  respect?'  and  he  answers:  'it 
"may  have.' 

"  Where  the  juror  has   been    e.vposed  to  influences  the 


3H 

"  probable  effect  of  which  is  to  create  a  prejudice  in  his^ 
"  mind  against  the  defendant,  which  it  would  require  evi- 
"  dence  to  overcome,  to  render  him  competent  it  should 
"  clearly  appear  that  he  can,  when  in  the  jury-box,  en- 
"  tirely  disregard  those  influences,  and  try  the  case  with- 
"  out,  in  any  degree  being  affected  b}'  them."  Judgment 
reversed. 

The  next  case  to  which  we  would  call  your  Honors'^ 
attention  is  that  of  Robinson  v.  Randall,  82  111.,  521. 
We  quote  from  the  opinion  of  the  court  delivered  by  Mr. 
Justice  Craig  as  follows: 

"  As  to  the  other  juror  (Mercer),  we  do  not  regard  him 
"competent.  He  said  he  had  great  prejudice  against  the 
"  traffic  (the  liquor  traffic) ;  could  not  give  the  testimony 
"  of  a  person  engaged  in  the  business  the  same  weiglit  he 
"  could  a  man  engaged  in  other  business.  Under  the  hiw. 
"the  defendants  were  competent  witnesses,  and  a  juror 
"  who  was  so  prejudiced  that  he  could  not  give  their  evi- 
"  dence  that  weight  which  it  was  entitled  to  receive  could 
"  not  be  regarded  as  a  person  standing  indifferent  between 
"the  parties,  free  from  all  bias  which  might  swerve  his 
"judgment  from  all  impartiality.  But  conceding  that  the 
"  court  erred  in  not  sustaining  the  challenge  of  the  juror^ 
"it  was  an  error  that  did  appellants  no  harm.  The 
"jurors  were  challenged  peremptorily  and  excused,  and 
"  appellants  did  not  exhaust  their  challenges  in  the  selec- 
"  tion  of  the  entire  jury  before  which  the  cause  was  tiied,. 
"  therefore  appellants  were  not  injured  by  the  ruling  of 
"  the  court,  and,  as  was  held  in  Winnesheik  Insurance 
"  Company  v.  Shrcllcr,  60  111.,  465,  we  cannot  reverse 
"  for  an  error  that  worked  no  injury. 

"If  appellants,  in  consequence  of  the  ruling  of  the 
"  court,  had  exhausted  their  peremptory  challenges,  and 
"had  been  compelled  to  accept  a  juror  whom  they  might 


315 

"  have  otherwise  rejected,  the  rule  might  be  otherwise,. 
"  but  this  record  does  not  disclose  such  a  state  of  facts." 

Construing  this  statute  also  in  the  case  of  Wilson  v. 
The  Peojt>le,  94  111.,  299,  the  opinion  of  the  court,  delivered 
by  Mr.  Justice  Scholfield,  bears  upon  the  point  under 
consideration,  and  is  as  follows: 

"  While  empaneling  the  jury,  William  Gray  was  called 
"  as  a  juror  in  the  case,  and,  being  first  duly  sworn,  testi- 
"  fied  in  response  to  questions  touching  his  qualifications 
"  as  a  juror:  '  I  have  read  newspaper  accounts  of  the 
"  commission  of  the  crime  with  which  the  defendant  is 
"  charged,  and  have  also  conversed  with  several  persons  in 
"regard  to  it  since  coming  to  Carthage  and  during  my  at- 
"  tendance  upon  this  term  of  court;  do  not  know  whether 
"they  are  witnesses  in  the  case  or  not;  do  not  know  who 
"  the  witnesses  in  the  case  are.  From  accounts  I  have 
"  read  and  from  conversations  I  have  had,  /  have  formed 
^^  an  opinion  in  the  case;  would  have  an  opinion  in  the 
",case  now,  if  the  facts  should  turn  out  as  I  have  heard 
"  them,  and  I  think  it  would  take  some  evidence  to  re- 
"  move  that  opinion;  would  be  governed  by  the  evidence- 
"  in  the  case,  and  can  give  the  defendant  a  fair  and  im- 
"  partial  trial,  according  to  the  law  and  the  evidence.' 

"  The  defendant,  by  his  counsel,  thereupon  challenged 
"  said  Gray  for  cause,  but  the  court  refused  to  allow  the 
"  challenge,  and  held  that  he  was  a  competent  juror  to  try 
"  the  case.  To  this  the  defendant  excepted,  and  tlien 
"  challenged  Gray  peremptor.l}-.  '■'■•  *  *  We  think 
"  all  objection  to  Gray's  competency  is  clearly  removed 
"  by  the  statute,  if  indeed  he  would  have  been  incom- 
"  petent  otherwise.  It  provides  in  two  of  the  clauses  of 
"section  14,  chapter  78,  of  the  revised  statutes  of  1874^ 
"  page  633,  as  follows: 

"  Provided,  further,  that  it  sliall  not  be  a  cause  of  chal- 


3i6 

■  lenge  that  a  juror  has  read  in  the  newspapers  an  account 
■of  the  commission  of  the  crime  with  which  the  prisoner 
■is  charged,  if  such  juror  shall  state,  on  oath,  that  he 
■believes  that  he  can  render  an  impartial  verdict  accord- 

•  ing  to  the   law    and    the   evidence;    and  provided,   fur- 

•  ther,   that    in    the    trial   of   any  criminal  cause,  the  fact 

•  that   a  person    called   as   a  juror  has  formed  an  opinion 

■  or  impression,  based  upon  rumor  or  upon  newspaper 
•statements  (about  the  truth  of  which  he  has  expressed 
'no  opinion),  shall  not  disqualify  him  to  serve  as  a  juror 
'  in    such    case,    if  he  shall,    upon   oath,  state  that  he  be- 

■  lieves  he  can  fairly  and  impartiall}'  render  a  verdict 
'  therein  in  accordance  with  the  law  and  the  evidence, 
'  and  the  court  shall  be  satisfied  of  the  truth  of  such 
'  statement. 

"  The  opinion  formed  seems  not  to  have  been  decided, 
'  but  one  of  a  light  and  transient  character  which,  at  no 
'  time,  would  have  disqualified  the  juror  from  serving.  It 
'  was  said  in  Smith  v.  Eames,  3  Scam.,  81:  'If  the 
'  opinion  be  merely  of  a  light  and  transient  character  such 
'  as  is  usually  formed  by  persons  in  every  community, 
'  upon  hearing  a  current  report,  and  which  may  be 
'  changed  by  the  relation  of  the  next  person  met  with, 
'  and  which  does  not  show  a  conviction  of  the  mind  and 
'  a  fixed  conclusion  thereon,  or  if  it  be  hypothetical,  the 
'  challenge  ought  not  to  be  allowed.'  *  *  *  * 
'  But  even  if  the  juror  had  been  incompetent,  still  under 
'  the  ruling  in  Rohimon  v.  Randall,  82  111.,  522,  holding 
'  that  he  was  competent  was  an  error  that  did  no  harm 
'  and  could  not  therefore  be  held  to  be  ground  for  reversal. 
'  The  defendant  exhausted  but  two  of  his  peremptory 
'  challenges,  and  hence,  when  he  accepted  the  jurors  by 
'  whom  he  was  tried,  he  was  entitled  to  eighteen  peremp- 
'  tor}'  challenges,   and  it  must,   therefore,  be  presumed 


317 

"  the  jurors  by  whom   he  was   tried    were  entirely  unob- 
"  jectionable  to  him." 

The  foregoing  Illinois  cases,  we  believe,  present  the  de- 
cisions of  our  Supreme  court  upon  the  right  of  a  defend- 
ant to  an  impartial  jury,  and  the  construction  of  the 
statute  passed  since  our  last  constitution.  From  these  de- 
cisions it  appears:  n/ 

1.  That  the  constitutionality  of  this  law  has  never 
been  challenged.  It  was  intended  to  cover  cases  where 
the  juror  would  have  been  held  competent  at  common 
law,  without  such  statute,  and  where,  under  the  decisions,. 
in  this  country,  made  under  our  various  constitutions,  he 
should  also  have  been  held  competent.  The  substance  of 
these  decisions  our  legislature  put  into  a  statute.  It  seems 
also,  from  these  decisions,  that  the  A^i-Co^x^X^ formation  of 
ati  opmion  by  the  juror,  and  having  that  opinion  at  the 
time  of  his  examination,  of  itself  disqualifies  such  juror, 
and  the  having  a  bias  against  a  class  of  people  exist- 
ing in  the  community,  or  a  class  under  the  law  com- 
petent as  witnesses,  so  that  the  same  consideration  and 
heed  would  not  be  given  them  in  reference  to  their  testi- 
mony as  to  other  persons,  of  itself  also  disqualifies  such 
juryman.  But  having  an  opinion  or  impression  not  de- 
liberately formed,  but  based  upon  rumor  or  newspaper 
accounts,  does  not  disqualify  him,  provided  he  will  swear 
that  notwithstanding  such  opinion  or  impression  he  be- 
lieves he  can  try  the  defendant  fairly,  and  the  court  is 
satisfied  that  the  juror's  judgment  on  this  point  is  correct.     '>^ 

2.  That  when  the  juror  has  once  by  his  statements 
become  disqualified,  he  cannot,  after  that,  by  swearing  that 
he  can  disregard  his  opinion  or  prejudice,  become  a  com- 
petent juror. 


3i8 


(e.)      Decisions  in  other    States    in    Construction 
OF  Similar  Statutes. 

In  Michigan  is  a  statute  similar  to  our  own,  exxept  that 
after  the  word  "  formed  "  are  "  or  expressed."  In  the 
38th  Michigan,  in  the  case  of  Stevens  v.  The  People,  742, 
Judge  CooLEY  uses  the  following  language:  "The  con- 
'•  stitution  of  this  state  provides  that  in  every  criminal 
"  prosecution  the  accused  shall  have  the  right  to  a  speedy 
"  public  trial  by  an  impartial  Jury.  Of  course  no  legisla- 
"  tion  can  take  this  right  away.  In  Holt  v.  T/ie  People, 
"  13  Mich., '224,  decided  long  before  the  act  of  1873 
"  was  passed,  it  was  decided  by  this  court  that  the  law 
"  did  not  require  that  a  juror  should  be  entirely  tmim- 
"  pressed  with  any  views  as  to  the  guilt  or  innocence  of 
"  the  person  on  trial,  but  only  that  he  should  not  have  an 
"■  opinion  of  such  a  fixed  and  definite  character  as  to 
"  leave  a  bias  on  his  mind  which  would  preclude  his  giv- 
"  ing  due  weight  to  the  presumption  of  innocence.  In 
"  that  decision  we  followed  what  we  believed  to  be  the 
"  settled  law  of  the  countrj-,  citing  in  support  of  it,  among 
"  others,  the  opinion  of  Chief  Justice  Marshall  in  Burr's 
"  case.  *  *  *  The  question  on  this  record  is, 
"  whether  that  jury  can  be  an  impartial  one  whose  mem- 
"  bers  are  already  so  impressed  with  the  guilt  of  the  ac- 
"  cused  that  evidence  would  be  required  to  overcome  such 
"  impression.  It  seems  to  us  that  this  question  needs  only 
"  to  be  stated;  it  calls  for  no  discussion.  This  woman, 
"  instead  of  entering  upon  her  trial  supported  by  a  pre- 
"  sumption  of  innocence,  was,  in  the  minds  of  the  jury, 
"  when  they  were  empaneled,  condemned  already;  and 
"  by  their  own  statements,  under  oath,  it  is  manifest  that 
"  this   condemnation    would   stand    against    her  until    re- 


319 

"  moved  by  evidence.  Under  such  circumstances,  it  is 
"  idle  to  inquire  of  jurors  whether  or  not  they  can  return 
"just  and  impartial  verdicts;  the  more  clear  and  positive 
"  were  their  previous  impressions  of  guilt,  the  more  cer- 
"  tain  may  they  be  that  they  can  act  impartially  in  con- 
"  demning  the  guilty  party.  They  go  into  the  jury  box 
"  in  a  state  of  mind  that  is  well  calculated  to  give  a  color 
"  of  guilt  to  all  the  evidence;  and  if  the  accused  escapes 
^'  conviction,  it  will  not  be  because  the  evidence  has  estab- 
"  lished  guilt  bej'ond  a  reasonable  doubt,  but  because  an 
"  accused  party,  condemned  in  advance,  and  called  upon 
"  to  exculpate  himself  before  a  prejudiced  tribunal,  has 
^'  succeeded  in  doing  so." 

As  to  the  importance  of  the  action  of  Judge  Gary  in 
substantially  importing  into  the  statute  of  1874  the  words, 
"  and  expressed,^''  or,  in  other  words,  disregarding  wholly 
the  fact  that  our  act  of  1874  does  not  attempt  to  provide  for 
the  relief  from  disqualification  of  a  juror  who  has  formed 
and  expressed  an  opinion,  etc.,  we  call  attention  to  the  case 
of  State  v.  Clarke,  42  Vermont,  629.  Pierpont,  Chief 
Justice,  delivering  the  opinion  of  the  court,  says: 

"  The  first  exception  taken  upon  the  trial  was  to  the 
*'  decision  of  the  court  allowing  one  Manly  to  sit  as  a 
^'  juror  in  the  trial  of  respondent,  against  his  objection.  It 
"  appears  that,  upon  being  inquired  of,  the  juror  said  that 
"  he  had  expressed  an  opinion  as  to  the  guilt  of  the  re- 
"  spondent,  on  reading  a  newspaper  account  of  the  exam- 
"  ination  of  the  respondent  before  the  magistrate,  some 
'•  month  or  six  weeks  before;  but  that  he  has  no  opinion, 
"  and  has  formed  none,  and  can  try  the  case  impartially 
"  on  the  evidence. 

"  This  question  was  before  this  court  in  the  case  of 
"  Boardman  et  al.  v.  Wood  et  al.,  3  Vermont,  270.  That 
"  was  a  civil    action,  and   the  question  arose  upon  the  an- 


320 

'  svver  of  a  juror  that  lie  had  formed  an  opinion,  but  did 
'  not  know  that  he  had  expressed  it.     The  court  decided 

■  that  to  have  formed  an  opinion  did  not  disqualify  a  juror, 

•  but  to  render  him  incompetent,  he  must  have  expressed 
'  that  opinion. 

"  Judge  Williams,  in  delivering  the  opinion  of  the  court, 
'  carefully  reviews  the  authorities  bearing  upon  the  ques- 

•  tion,  and  shows  very  clearly  and  satisfactorily  that  the 
'  rule,  both  in  England  and  in  this  country,  is  that  a  juror 
'  who  hds  foi-mcd and  expressed  an  opinion  is  disqualified, 
'  and  that  one  who  has  formed  an  opinion  without  express- 
'  ing  it  is  not.  So  far  as  my  experience  and  observation  ex- 
'  tend,  this  rule  has  been  recognized  and  practiced  upon, 
'  both   by   the   courts    and    the   bar,    ever   since,  in   this 

■  state;  and  the  practice,  I  think,  has  been  the  same, 
'  both  in  civil  and  criminal  cases.     There  certainly  can  be 

■  no  good  reason  for  relaxing  the  rule  against  the  respond- 

■  ent  in  a  criminal  prosecution.    In  this  case  the  juror  says 

■  he  expressed  an  opinion.     That  necessarily  involves  the 

•  forming  of  one,  as  he  could  not  otherwise  express  it. 
'  Having  formed  and  expressed  an  opinion,  he  is  tht- reb}- 

■  disqualified,  unless  what  he  further  says  shall  have  the 

■  effect  to  take  the  case  out   of   the    rule.     It  is  not  quite 

■  clear  what  the  juror  meant   when   he  said  that,  at  the 

■  time  of  the  trial,  he  had  no  opinion,  and  had  formed  none, 

■  after  having  just  stated  that  a  few  weeks  before  he  had 

■  expressed  one.     Probably  these   expressions  should  be 

■  taken  in  connection  with  the  following  one:  that  he  could 
'  try  the  case  impartially,  and  that  what  he  meant  was, 
'  that  he  had  no  opinion,  and  had  formed  none,  that  would 

■  prevent  his  trying  the  case  impartiall)',  and  undoubtedly 

■  he  thought  so.  Men  are  very  apt  to  think  they  can  try 
'  cases  fairl}',  even  though  they  have  a  strong  feeling  in 
'  favor  of  one  side  or  the  other;   but  whether  a  man  who 


321 

"  has  expressed  an  opinion  on  the  subject  to  be  considered 
"  can  try  the  question  fairly  or  not,  does  not  depend  upon 
"  his  own  opinion  of  his  impartialit}'.  The  rule  of  law  is 
"  that  he  cannot,  or,  at  least,  that  the  parties  shall  not  be 
"  required  to  take  the  risk." 

In  the  State  of  Texas,  with  the  same  constitutional  pro- 
vision as  to  the  right  of  the  accused  to  be  tried  by  an  Im- 
■par  Hal  jury,  there  is  a  provision  in  their  code  that  a  juror 
shall  be  disqualified  when,  from  hearsay  or  otherwise, 
there  has  been  established  in  his  mind  such  a  conclusion 
as  to  the  guilt  or  innocence  of  the  defendant  as  will  influ- 
ence him  in  finding  the  verdict.  It  is  provided  further 
that,  to  determine  whether  there  is  such  a  conclusion  in 
the  juror's  mind,  the  juror  shall  first  be  asked  whether,  in 
his  opinion,  the  conclusion  will  influence  his  verdict.  If 
he  answers  affirmatively,  he  shall  be  discharged;  if  he 
answers  negatively,  he  shall  be  examined  by  the  court, 
and  if  the  court  is  satisfied  that  he  will  be  influenced  by 
the  opinion,  he  shall  still  be  discharged.  In  the  case  of 
Black  V,  The  Stale,  42  Texas,  377,  a  juror,  having 
answered  the  questions  put  to  him  satisfactorily,  was 
accepted  by  the  court,  after  due  examination,  and  the 
challenge  for  cause  was  disallowed,  which  was  assigned 
for  error.  The  examination  of  the  juror  was  to  this 
effect:  "That  he  had  read  the  report  of  the  evidence  in 
"  the  case  of  The  State  v.  A.  J.  Walker;  that  he  had 
'■'■formed  an  opinion  thereon  as  to  the  guilt  or  innocence  of 
"the  accused;  that  it  would  require  other  and  different 
"evidence  to  change  that  opinion;  that  the  opinion  so 
"  formed  would  not  influence  his  verdict  in  the  slightest 
"  degree,  and  that  he  would  go  into  the  jury-box  and  give 
"  the  accused  a  fair  and  impartial  trial,  according  to  the 
"law  and  the  evidence  appearing  on  this  trial."  In  sus- 
taining the  error  and  reversing  the  cause,  on    the  ground 


322 

that  the  challenge  to  this  juror  was  improperly  overruled, 
the  court  say: 

"In  this  case  the  juror  had  read  the  report  of  the  evi- 
"  dence  in  the  Walker  case — Walker  and  the  defendant 
"  being  charged  with  the  commission  of  the  same  oflense,  in 
"  the  same  indictment.  The  report  referred  to  may  be  pre- 
"  sumed  to  be  the  detail  of  the  evidence  at  a  former  trial 
"  as  given  in  the  newspapers  of  the  city,  which  is  usually 
"  published  in  cases  exciting  any  general  interest.  He  must 
"  have  placed  reliance  in  the  report  of  the  evidence  which 
"  he  read,  in  order  to  have  enabled  him  to  have  formed  a 
'•  conclusion  at  all,  and  the  fact  that,  as  he  says  himself, 
"  it  would  require  other  and  different  evidence  to  change 
"  that  opinion  shows,  or  at  least  renders  it  probable,  that 
"  it  was  with  some  considerable  attention  to,  and  a  consid- 
"  eration  of  the  facts  reported,  that  he  had  formed  his 
"  conclusion.  Under  such  circumstances,  we  are  of  opin- 
"  ion  that  the  court  below,  in  judging  of  the  qualification 
"  of  the  juror,  should  not  have  been  satisfied  that  he  was 
"  an  impartial  juror. 

"  The  juror  took  his  seat  in  the  jury-box  with  a  con- 
"  elusion  formed,  when  the  defendant  had  not  been  heard, 
"  and  without  the  benefit  of  the  instruction  of  the  court 
"  as  to  the  law  applicable  to  the  case.  If  his  conclusion 
"  was  in  favor  of  the  prisoner's  guilt,  it  was  as  a  weight 
"  put  in  the  scales  of  justice  before  the  trial  commenced. 
"  Whatever  of  obstinacy  of  character  and  pride  of  opin- 
"  ion  he  possessed  had  to  be  overcome  by  other  evidence. 
"  There  are,  perhaps,  but  few  men  who  do  not  lean  in 
"  favor  of  preconceived  opinion,  founded  on  what  they 
"  deem  to  be  an  authentic  source.  They  look  favorably 
"  upon  whatever  will  support  it,  and  examine  with  in- 
"  creased  caution  whatever  will  oppose  it.  The  love  of 
"  consistency  in    the    formation    of    their    judgments   re- 


3^3 

"  quires  this  of  them.  No  authority  has  been  found  for 
"  holding  that  this  juror  was  qual'ihed,  and  an  abundance 
"  that  is  in  opposition  to  it.  See  Graham  &  Waterman 
"  New  Trials,  p.  377,  and  American  authorities  cited, 
"  378,  379-" 

As  particularly  applicable  to  the  examination  of  the 
jurors  in  the  case  at  bar,  we  now  cite  the  case  of  Wright 
V.  CommoHweallh,  32  Grattan,  941.  In  that  case  one  of 
the  proposed  jurors  objected  to  stated  "  that  he  had 
"  read  newspaper  accounts  of  the  offense  with  which 
"  prisoner  was  charged,  and  had  heard  rumors  of  the 
"  same;  that  upon  what  he  had  heard  and  read  he  had 
"  made  up  and  expressed  an  opinion  in  the  case;  that  the 
"  opinion  so  made  up  and  expressed  was  still  upon  his 
"  mind;  that  he  did  not  think  he  could  do  the  prisoner 
"justice;  but  in  answer  to  a  question  from  the  judge, 
"  should  the  evidence  before  the  jury  be  different  from 
"  that  he  had  read,  he  said  his  opinion  would  be  changed; 
"  that  he  could  conic  to  the  trial  with  an  unbiased  and  an 
"  unprejudiced  mind,  and  give  the  accused  a  fair  and 
"  impartial  trial.''''  Upon  this  examination  the  challenge 
for  cause  was  overruled,  and  the  juror  was  accepted  and 
sworn.  In  reversing  the  case  for  this  error  the  Supreme 
court  used  the  following  language  (page  943) : 

'■  If  the  juror  has  made  up  and  expressed  a  decided 
*'  opinion  as  to  the  guilt  or  innocence  of  the  accused,  he  is 
"  incompetent;  and  it  does  not  matter  whether  the  opin- 
*'  ion  be  founded  on  conversations  with  the  witnesses  or 
"  upon  mere  hearsay  or  rumor.  It  is  sufficient  that  the 
"  opinion  is  decided,  and  has  been  expressed.  *  *  * 
"  He  must  be  able  to  give  him  a  fair  and  impartial  trial. 
"  Upon  this  point  nothing  should  be  left  to  inference  or 
"  doubt.  All  the  tests  supplied  by  the  courts,  all  the  in- 
"  quiries    made    into   the   state   of    the  juror's    mind,  are 


324 

•  merely  to  ascertain  whether  he  comes  to  the  trial  free 
from  partiality  and  prejudice. 

"  If  there  be  a  reasonable  doubt  whether  the  juror  pos- 
sesses these  qualifications,  that  doubt  is  sufficient  to  in- 
sure his  exclusion.  For,  as  has  been  well  said,  it  is  not 
only  important  that  justice  should  be  impartially  admin- 
istered, but  that  it  should  also  flow  through  channels 
as  free  from  suspicion  as  possible. 

"  Now,  in  the  case  before  us,  the  juror  had  heard  of  the 
homicide,  and  he  had  read  the  newspaper  accounts  of  the 
occurrence,  and  upon  these  he  had  made  up  and  expressed 
an  opinion,  which  he  then  entertained;  and  such  was 
the  state  of  his  mind,  '  he  did  not  think  he  could  do  the 
prisoner  justice.'     It  is  true  he  subsequently  stated,  ir» 

•  answer  to  a  question  propounded  by  the  court,  that  he 
could  come  to  the  trial  with  an  unbiased  and  unprejudiced 
mind,  arid  give  to  the  accused  a  fair  and  impartial  trial. 
But  how  was  the  court  to  decide  which  of  these  state- 
ments was  true  and  which  was  false?  How  was  it  to 
say  that  the  second  statement  more   correctly  and   truly 

'  represented  the  juror's  feelings  than  the  first?     His  first 

■  avowal  showed  alone  he  was  not  a  fit  person  to  sit 
upon  the  trial  of   the  accused  ;  his  ready  disavowal    of 

•  all  prejudice  under  the   interrogation  of  the  court  fur- 

•  nished  no  satisfactory  evidence    of    his  impartiality  or 

■  competency.     A  man  who  could  assert  in  one  breath 

■  that  he  had  prejudged  the  accused   and  could  not  do 

•  him  justice,  and  in  the  next  assert  that  his  mind  was 

•  free  from   all  prejudice,  is  not  to  be  trusted  with    the 

■  grave  and  responsible  duty  of  passing  upon  the  guilt  or 

■  innocence    of  a  fellow-being.     Such  a  man   may   per- 

■  suade  himself  that  he  is  impartial,  but  the  law  does  not 
'  so  regard  him.  Unconsciously  to  himself,  it  may  be, 
'  his  prejudices  will  follow  him  into  the  jury  box  and  in- 


325 

*'  fluence  and  control  his  judgment  there.  We  are,  there- 
"  fore,  of  opinion  that  this  juror  is  incompetent,  and  the 
■"  County  court  erred  in  permitting  him  to  be  sworn  as 
^'  such." 

In    Cm-ry   v.    The  State,  4  Neb.,   545    (January  term,  [/^ 

1876),  the  question  arose  as  to  the  constitutionalitj'  of  a 
statute  substantially  like  our  act  of  March  12,  1874,  ^^ 
view  of  a  constitutional  provision  similar  to  our  own. 
The  court  unhesitatingly  declares  that  if  the  statute  con- 
flicted in  any  particular  with  the  constitution  it  was  of 
course  inoperative,  but  proceeded  to  give  the  statute  such 
a  construction  as  we  contend  should  have  been  given  to 
■our  statute  in   the   present   case.     The  following  is  the  y\ 

language  of  the  court  (pp.  549,  550) : 

"  The  juror  Corby  was  of  opinion  that  '  he  might 
"  lean  a  little  the  other  waj','  that  is,  against  the  return  of 
"  an  impartial  verdict.  But  it  is  altogether  immaterial 
"  whether  he  leaned  little  or  much;  to  render  him  com- 
"  petent  he  must  not  lean  at  all,  neither  for  or  against  one 
"  party  or  the  gather.  iVb  inqtiiry  can  be  entej-ed  ufon  as 
"  to  the  extent  of  a  juror'' s  bias  or  prejudice;  if  he  be  not 
"  certain  of  their  non-existence  he  ought  not  to  be  per- 
"  milled  to  sit  upon  the  jur}'  in  any  case." 

*  :i:  *  *  *  *  * 

"  If,  however,  the  opinion  of  a  juror,  based  upon  news- 
■"  paper  statements  or  common  rumor,  be  not  merely  hypo- 
^'  thetical  but  decided  and  so  fixed  as  to  require  testimony 
^'  to  overcome  it,  should  he  be  retained  if  challenged  for 
"  that  reason?  We  think  not.  Surely  such  a  juror 
"  cannot  be  said  to  stand  impartially  between  the  parties, 
^'  and  to  hold  him  to  be  competent  would  in  our  opinion 
■"  violate  not  only  the  constitutional  guaranty  of  a  free  and 
"  impartial  jurj^  but  also  the  spirit,  if  not  the  letter,  of  the 
*'  section  of  the  statute  above  quoted." 


326 

To  the  same  effect  is  the  decision  of  the  same  court  in 
F'armer  v.  The  People,  4  Neb.,  68. 

We  have  not  regarded  it  necessary  in  the  contention 
which  we  make  before  this  court  to  attack  the  constitu- 
tionality of  the  act  of  March  12,  1874,  because  we  have 
supposed  that  the  act  was  susceptible  of  such  a  con- 
struction as  might  relieve  it  from  such  objection.  But  our 
contention  is  that  the  construction  given  to  it  by  Judge 
Gary  makes  the  statute  obnoxious  to,  and  a  limitation 
upon,  the  constitutional  provision  under  consideration;  and 
that  such  construction  must,  therefore,  be  held  to  be  er- 
roneous. 

Upon  the  proposition  that  the  clause  of  the  constitution 
of  1870  is  to  be  construed  in  the  light  of  the  prior  decis- 
ions of  this  court,  proceeding  under  a  like  clause  in  our 
earlier  constitutions;  and  that  if  this  statute  is  necessarily 
to  receive  such  construction  as  will  materially  infringe 
upon  the  right  of  the  accused  to  an  impartial  Jury  as  thus 
secured,  i^_vvwild_^e_urKonstitutjona[,  we  beg  to  cite  the 
case  of  Eason  v.  The  Stale,  6  Baxter  (Tenn.),466,  (April 
term,  1873).  From  that  case  it  appears  (page  468)  that 
the  constitution  of  Tennessee  adopted  in  1S70  contains  a 
provision  guaranteeing  defendants  in  criminal  cases  a  trial 
bj'an  impartial  jury;  and  that,  in  an  act  of  the  legislature 
thereafter  passed,  there  was  the  following  provision: 

"  That  hereafter  no  citizen,  in  any  criminal  prosecution 
"  in  this  state,  shall  be  adjudged  incompetent  to  act  as  a 
"  juror  by  reason  of  \\A\\ng  /ortiied  or  expressed  an  opin- 
"  ion  touching  the  guilt  or  innocence  of  the  accused  upon 
"  information  derived  exclusivel}'  from  any  published  ac- 
"  count  of  the  facts  of  the  oflense  with  which  the  defend- 
"  ant  stands  charged,  unless  the  writer  of  said  statement 
"  in  said  article  professed  to  have  been  a  witness  to  the 
"  same  at  the  time  of  their  occurrence,  which  must  affirm- 


327 

"  ativel}'^  appear;  and  provided  that  said  juror  will  state, 
"  upon  the  law  and  the  testimony,  on  trial,  he  believes  he 
"  can  give  the  accused  a  fair  and  impartial  verdict." 

It  will  be  observed  that  the  provisions  of  this  statute, 
while  differing  in  some  particulars  from  our  own,  and 
going  beyond  ours  in  the  provision  as  to  the  expression  of 
the  opinion  formed,  are  otherwise  of  the  same  general 
purport  as  our  own,  and  were  designed  to  accomplish  the 
same  end  to  which  Judge  Gary  used  our  statute  of  March 
12,  1874.  "^^^  constitutionality  of  this  Tennessee  act 
was  challenged  in  the  case  cited,  and  the  court,  in  its 
opinion,  used  the  following  language  (470) : 

"  The  guarantee  of  a  trial  by  an  '  impartial  jury  '  has 
"  been  secured  to  the  accused  in  exactly  the  same  lan- 
"  guage  in  the  constitutions  of  1796,  1834  and  1870.  They 
"  were  introduced  into  '  the  Bill  of  Rights '  of  1796,  and 
"  we  are  to  presume  that  they  were  adopted  with  a  full 
"  understanding  of  their  legal  import,  as  ascertained  and 
"  settled  by  judicial  interpretations  in  England.  But  if 
"  there  was  any  doubt  as  to  this  proposition,  if  we  shall 
"  find  that  there  has  been  an  unbroken  chain  of  judicial 
"  construction,  from  1796  down  to  1834,  when  the  same 
"  words  were  again  adopted  in  the  constitution  of  that 
"  year;  and  also  from  1834  down  to  1870,  when  the 
"  same  words  were  adopted  for  the  third  time  in  the  con- 
"  stitution  of  that  year;  and  if  we  find,  throughout  this 
"  succession  of  decisions,  the  same  construction  has  been 
"  uniformly  placed  upon  the  words,  we  are  forced  to  the 
"  conclusion  that  that  construction  is  to  be  regarded  as 
"  the  true  legal,  judicial  and  constitutional  meaning  of  an 
"  '  impartial  jury.'  " 

The  court  then  proceeded  to  cite  the  earlier  decisions 
of  that  state,  including  Rice  v.  State,  i  Yer.,  432;  Mc- 
Gollan  v.  The  State,  9  Yer.,  192 ;  Baine  v.  State,  3  Hum- 


328        ■ 

jihrey,  2'j ^-j  Brackjie/d  v.  State,  i  Sneed,  215,  and  North- 
£eld  V.  State,  4  Sneed,  340,  and  then  said: 

"  When  the  constitution  o£  iSyowas  adopted,  the  same 
"  language,  which  had  thus  been  judicially  interpreted, 
"  was  again  re-adopted,  and,  we  have  the  right  to  pre- 
"  sume,  with  full  knowledge  of  its  uniform  interpretation 
"  in  the  constitution  of  1796  and  1834.  This  being  so, 
"  this  interpretation  of  the  language  becomes  incorpo- 
"  rated  with  the  constitution  of  1870  as  part  of  the 
"  fundamental  law  of  the  state.  The  decisions  which 
"  have  fixed  the  true  meaning  of  the  words  '  impartial 
"jury'  also  established  the  position,  that  a  juror  who  is 
"  incompetent  from  having  formed  or  expressed  an  opinion 
"  as  to  the  guilt  or  innocence  of  the  accused  cannot  ren- 
"  der  himself  '  impartial '  by  expressing  his  belief,  on  his 
"  examination,  that  he  can  render  a  fair  and  impartial 
"  verdict  according  to  law  and  proof,  notwithstanding  the 
"  opinion  then  in  his  mind.     *     *     * 

"  When  the  constitution  guarantees  to  the  accused  an 
"  '  impartial  jury,'  it  necessarily  means  that  he  is  entitled 
"  to  a  jury  which  can  enter  upon  the  examination  of  his 
"  case,  conceding  to  him  the  full  benefit  of  that  pre- 
"  sumption  of  innocence  which  the  law  gives  to  every 
"  prisoner  as  a  matter  of  right.  This  presumption  en- 
"  titles  him  to  an  acquittal  until  it  has  been  overturned 
"  by  plenary  proof.  In  the  formation  of  a  jury  under  the 
"  statute  in  question,  the  prisoner  may  have  forced  on 
"  him  as  his  tryers  twelve  men  who  will  enter  the  box 
"  with  a  conviction  on  their  minds  that  he  is  guilty,  and 
"  he  must  stand  convicted,  in  their  judgment,  until  he 
"  has,  by  full  proof,  overcome  their  conviction  of  his 
"  gailt,  and  established  his  innocence.  This  would  be  a 
"  virtual  reversal  of  the  fundamental  principle  that  the 
"law  presumes   the  accused  to  be  innocent  until    proof 


329 

•  shows  him  to  be  guilt}'.     It  is  httle  else  than  a  mockery 

•  to  ir}-  the  competency  of  a  juror  by    asking  if  he  has 
■  formed  and  expressed  his  opinion  of  the   guilt   or  inno- 
cence of  the  accused,  and  when   he  answers  that  he  has 
upon  having  heard  or  read   the  facts,  then  to  take  him 

'  as  an  impartial  juror,  upon  his  belief  that    he  can  divest 

•  himself  of  his  convictions  and  render  a  fair  and  impar- 
tial verdict.  A  prisoner  whose  life  or  liberty  is  sub- 
mitted to  a  jury  composed  of  such  men  cannot  be 
said  to  have  a  fair  trial  by  an  impartial  jur}-.  We  hold 
that  an  impartial  juror  is  one    who   enters    the   box  in- 

'  different  between  the  parties,  indifferent  in  feeling  and 
in  opinion.  Either  partiality  or  prejudice  in  the  usual 
acceptance  of  those  words,  or  an  opinion  based  on  the 
supposed  facts  of  the  case,  already  existing  in  his  mind, 
renders  it  impossible  for  him  to  be  indifferent  and  there- 
fore to  be  impartial.  If  he  is  partial  or  prejudiced,  he 
will  enter  upon  the  trial  predisposed  to  follow  his  par- 
liality  or  prejudice  in  weighing  testimon}'.  If  he  enters 
t!ie  box  with  an  opinion  already  made  up,  he  will  be 
ill  danger  of  so  viewing  and  weighing  the  testimony  as 
to  sustain  and  confirm  his  existing  impressions.  One 
of  the  jurors  who  was  put  to  the  prisoner  in  this  case 
as  competent  stated  that  the  impressions  made  on  his 
mind  by  reading  details  of  the  facts  as  they  were  given 
in  the  newspaper  were  such  that  the  proof  to  remove 
them  must  be  full.  When  could  a  jury  composed  of 
men  such  as  the  juror  referred  to,  be  said  to  be  indif- 
ferent? Certainly  never  until  their  convictions  of  guilt 
had  been  removed  by  full  proof  of  innocence.  Is  it  not 
an  abuse  of  language  to  call  such  a  jury  an  impartial 
one.''  To  be  an  impartial  jury,  they  should  enter  the 
box  indirterent  at  the  time  of  entering  it  between  the 
state  and  the   accused.     The  courts  have  gone   to  the 


33° 

verge  of  the  law  in  holding  thai  a  juror  who  has  formed 
and  expressed  an  opinion  on  mere  rumor  may  be  an 
impartial  juror.  We  recognize  such  to  be  the  settled 
law,  but  we  are  not  disposed  to  go  further  in  that  di- 
rection. It  has  been  urged  with  much  earnestness  and 
force  that  the  act  of  the  legislature  in  question  ought  to 
be  sustained  upon  considerations  of  public  policy.  Con- 
siderations of  this  character  can  have  no  place  in  con- 
sidering questions  involving  the  constitutionality  of 
laws,  except  in  cases  where  there  is  doubt  as  to  the 
power  of  the  legislature  to  enact  the  laws. 

*  *  *  *  *  * 

"  But  it  is  our  dut}',  and  the  highest  and  most  responsible 
imposed  upon  us,  to  guard  the  constitution  against  in- 
fractions. When  we  are  called  upon  to  determine  con- 
stitutional questions,  if  we  are  in  no  doubt,  our  path  of 
duty  is  plain  and  straightforward." 


{/■)     As  TO  THE  Propriety  of  Questions  in  Refer- 
ence TO  Peremptory  Chaleenges. 

The  law  is  settled  so  directly  in  the  case  of  C.  d  A. 
R.  R.  Co.  v.  Mary  A.  Butlolf,  66  111.,  347,  that  we  cite 
that  case  as  especially  bearing  on  this  subject.  That  case 
was  tried  before  one  Joseph  E.  Gary,  judge,  at  Chicago — 
the  same  judge  who  tried  the  present  case.  The  point 
saved  in  that  case  was  exactly  like  the  points  saved  with 
reference  to  such  questions  in  the  case  at  bar,  and  is 
stated  as  follows,  in  the  language  of  the  court: 

"  Upon  impaneling  the  jury,  several  of  the  jurors  were 
«  asked  by  defendant's  counsel  this  question:  If,  upon 
"  hearing  the  testimony,  they  should  find  it  evenly  bal- 
"  anced,  which  way  they  would  be  inclined  to  decide  the 
"  case?     The  plaintiff's  counsel  objected  to  the  question. 


"  and   the  court  sustained   the   objection,  and   defendant 
«  excepted. 

"  On  one  ground,  if  no  other,  the  question  was  proper 
"  as  determining  the  exercise  of  the  defendant's  right 
"  to  a  peremptory  challenge."  *  *  * 

The  court  reversed  the  judgment  on  this  point  alone. 
It  says:  "  On  the  first  point  (that  is  the  point  we  have 
"  suggested)  the  judgment  must  be  reversed." 

The  precise  point  in  question  was  also  settled  in  the 
case  of  Lavin  v.  The  People,  69  111.,  303.  The  question 
now  considered  is  the  only  question  presented  in  that 
case  to  the  Supreme  court  to  pass  upon.  The  opiniori 
of  Justice  Craig  states  the  case  and  uses  the  following 
language: 

"  In  selecting  a  jury  to  try  the  cause  in  the  Criminal 
"  court,  the  defendant  propounded  to  each  juror  called,. 
"  the  following  questions:  First.  Are  you  a  member  of 
"  a  temperance  society?  Second.  Are  you  connected 
"  with  any  society  or  league  organized  for  the  purpose  of 
"  prosecuting  a  certain  class  of  people,  under  what  is 
"  called  the  new  temperance  law  of  the  state;  or  have 
"  you  ever  contributed  any  funds  for  such  a  purpose?" 
(Objection  by  the  state's  attorney;  objection  sus- 
tained, and  exception  by  the  defendant.) 

The  court  continues:  "  It  is  the  policy  of  our  laws  \o 
"  afford  each  and  every  person  who  may  have  a  cause 
"  for  trial  in  our  courts  a  fair  and  impartial  trial.  This 
"  can  only  be  done  by  having  the  mind  of  each  juror  who- 
"  sits  to  pass  judgment  upon  the  life,  liberty  or  rights 
"  of  a  suitor  entirely  free  from  bias  or  prejudice.  Ira 
"  order  to  determine  whether  the  person  who  may  be 
"  called  as  a  juror  possesses  the  necessary  qualifications,. 
"  whether  he  has  prejudged  the  case,  whether  his  mind  is 
"  free  from  prejudice    or  bias,  the    suitor    has  the  right  tcv 


332 

*'  ask  him  questions,  the  answer  to  which  may  tend  to 
"  show  he  may  be  challenged  for  cause,  or  disclose  a 
"  state  of  facts  from  which  the  suitor  may  see  proper  to 
*'  reject  such  juror  peremptorily." 

The  court  cites  and  quotes,  in  strengthening  itself  in 
tills  position,  from  The  Cotnmonzvealth  v.  Egan,  4  Gray, 
18;  People  V.  Rogers,  5  Cal.,  347,  in  each  of  which  cases 
the  precise  question  is  decided. 

For  the  error  indicated,  and  for  that  error  alone,  the 
■Supreme  court  reversed  the  judgment  in  that  case. 

In  the  case  at  bar  two  motives  operated  upon  the  mind 
of  the  person  asking  the  questions  which  Judge  Gary 
refused  to  permit  to  be  answered.  One  was  to  elicit 
answers  furnishing  ground  of  challenge  for  cause.  The 
other  was  to  call  out  facts  with  a  view  to  satisfy  his  own 
mind  whether  the  juror  should  be  challenged  peremptorily. 
At  the  time  of  asking  these  questions  defendants  still  had 
the  right  to  challenge  peremptorily;  and  we  maintain  that 
there  is  no  limit  to  the  range  of  inquiry  in  reference  to 
the  exercise  of  the  right  of  peremptory  challenge,  except 
impertinence  or  questions  involving  improprieties  of  life. 


II.     JUDGE  GARY'S  RULINGS   ON   THE    QUALIFICA- 
TION OF  JURORS,  AND  OUR  CONTENTIONS. 

The  complaints  that  we  have  to  make  with  Judge  Gary's 
rulings  on  that  point  are,  in  substance,  as  follows: 

His  Positions  are: 

I.     Judge  Gar}',  in  this  trial,  adopted  the  statute  alone 

as  the  basis  of   the  right  of    trial  by  jury.     He  absolutely 

ignored  the  constitutional  right  of    trial  by  an    impartial 

jury,  and  construed  the    statute    broadly  against   the   de- 


333 

fendants  in  reference  to  its  meaning,  as  though  it  were  the 
only  provision  in  existence  in  reference  to  the  right  named, 
and  the  only  source  of  the  right  of  trial  by  jury. 

2.  The  court  held  that  jurors  were  competent  who  had 
formed  and  expressed  an  opinion  of  the  guilt  or  innocence 
of  the  accused,  based  upon  newspaper  articles  and  rumors, 
and  held  such  opinions  at  the  time  of  their  examination 
and  which  it  would  require  evidence  to  remove,  provided 
they  would  swear  they  could  "  fairly  and  impartially 
"  render  a  verdict  therein." 

The  court  carried  his  ruling  to  the  extent  of  holding 
that  even  where  the  proposed  juror  stated  that  he  had 
formed  and  expressed  an  opinion  in  reference  to  the  guilt 
or  innocence  of  the  defendants,  based  upon  what  he  had 
read,  heard  and  believed  to  be  true,  and  admitted  that  he 
had  talked  with  parties  who  were  present  at  the  Hay- 
market,  witnessing  the  occurrences  there,  and  who  de- 
tailed the  same  to  the  juror,  and  whose  statements  were 
believed  by  the  juror  to  be  true;  still  this  did  not  disqual^ 
ify  the  proposed  juror;  while  continually,  by  the  ques- 
tions asked  by  the  court,  the  position  was  in  fact  assumed 
that  a  prejudice  against  the  defendants,  if  it  were  based 
only  upon  what  he  had  heard  and  read  in  connection 
with  the  Haymarket  trouble,  did  not  disqualify  the 
proposed  juror,  if  he  would  state  that  he  believed  he 
could  fairly  and  impartially  try  the  case  and  render  his- 
verdict. 

3.  The  court  held  that  a  juryman,  who  had  formed 
and  expressed  an  opinion  of  the  guilt  or  innocence  of  the 
accused,  based  upon  rumors  or  newspaper  articles,  and 
had  also,  in  the  past,  expressed  an  opinion  of  the  truth  or 
falsity  of  such  rumors  or  articles,  was  thereby  disqualified 
as  a  juror;  but  the  present  statement  by  the  juror,  at  the 
time  of  his  examination  on   his  voir  dire,  that  he  believed 


334 

then  what  he  had  heard  and  read  to  be  true,  and  that  he 
hdiA/o}-tned  and  expressed  an  opinion  of  the  guilt  or  inno- 
•cence  of  the  defendants,  based  on  what  he  had  so  heard' 
read  and  believed,  did  not  disqualify  him. 

In  other  words,  Judge  Gary  held  that  if  a  proposed 
juryman,  who  had  formed  and  expressed  an  opinion  as  to 
the  guilt  or  innocence  of  the  accused,  based  upon  news- 
paper accounts  and  rumors,  had  also  expressed  an  opinion 
about  the  truth  of  such  newspaper  accounts  and  rumors 
previous  to  his  examination  as  a  juror,  that,  in  itself,  dis- 
qualified him.  But  if  he,  for  the  first  time  during  his  ex- 
amination, stated  that  he  then  believed  such  accounts  and 
rumors  to  be  true,  and  still  had  such  an  opinion  of  the  guilt 
or  innocence  of  the  accused,  that,  in  itself,  did  not  disqual- 
ify him. 

In  his  construction  of  the  statute  (Chap.  78,  Sec.  14), 
Judge  Gary  introduces  the  words  "  and  expressed " 
after  the  word  "  formed,"  and  made  it  read,  "  formed 
"and  expressed";  and  introduces,  after  the  words  in  pa- 
rentheses, "  about  the  truth  of  which  he  has  expressed  an 
■opinion,"  the  words  "  previous  to  his  examination,"  and 
not  applying  to  a  present  fixed  behef. 

4.  The  fact  that  the  proposed  juror  swore  that  the 
opinion  or  prejudice  which  he  had  at  the  time  of  the 
examination  was  fixed  and  positive,  and  that  the  juror 
had  expressed  such  opinion,  and  would  require  evidence, 
and  even  a  good  deal  of  evidence,  for  its  removal,  the 
court  held,  did  not  disqualify  the  juror,  provided  he  would 
swear  that  he  believed  he  could  render  a  fair  and  impar- 
tial verdict  in  the  case. 

Judge  Gar}'  finally  refused  to  allow  the  proposed  jurors 
to  be  asked  whether  their  opinion  concerning  the  guilt  or 
innocence  of  the  defendants  or  their  prejudice  against 
them  was  such  as  would  require  evidence  for  its  removal, 


335 

even  for   the    purposes  of  determining  as  to  exercising  a 
peremptory  challenge. 

5.  Where  proposed  jurors  admitted  a  prejudice  or  bias 
against  socialists,  anarchists  or  communists,  as  a  class, 
the  judge  refused  to  allow  the  defendants  to  ask  questions 
as  to  whether  that  prejudice  was  such  as  materially  to 
affect  the  credence  they  would  accord  to  the  evidence  of 
the  defendants,  or  as  probably  to  affect  them  in  determin- 
ing the  question  of  the  guilt  or  innocence  of  said  defend- 
ants, if  it  should  appear  or  be  conceded  that  said  defend- 
ants, or  some  of  them,  were  socialists,  anarchists  or  com- 
munists; and  refused  to  allow  challenges  for  cause  on 
account  of  any  such  confessed  prejudice  or  bias  against 
such  classes;  and  refused  to  allow  this  question  to  be 
asked,  even  as  to  determining  upon  a  peremptory  chal- 
lenge. 

Our  Positions  are  as  follows: 

I.  That,  when  the  people  adopted  the  constitution  of 
1870,  they  adopted  section  9  of  article  2  thereof,  with 
reference  to  the  construction  it  had  theretofore  received 
from  our  Supreme  court,  as  a  provision  of  the  constitu- 
tions of  1818  and  1848  as  to  what  constituted  an  impartial 
jury.  That  the  statute  of  1874,  i"  '•^e  particular  under 
consideration,  is  to  be  construed  with  reference  and  sub- 
ject to  this  provision  of  this  constitution  of  1870,  and  the 
interpretation  theretofore  given  by  the  Supreme  court. 
If  the  statute  necessarily  requires  such  a  construction  as 
impairs  the  right  to  an  impartial  jury,  as  heretofore  held 
by  this  court  under  the  constitutions  of  Illinois  of  1818, 
1848  and  1870,  all  of  which  are  alike,  and  have  received 
the  same  construction,  it  must  then  be  held  unconstitu- 
tional and  void.  And,  least  of  all,  is  the  court  permit- 
ted to  interpolate  words  into  the  statute  of  1870  not  found 


336 

there,  the  effect  of  which,  when  thus  incorporated,  would 
necessarily  be  to  enlarge  its  scope  or  extend  its  operation, 
and  deny  the  right  of  the  defendant  to  a  fair  and  impartial 
jur}-,  guaranteed  by  the  constitution. 

The  statute  in  question  only  goes  the  length  in  terms  of 
holding  as  follows:  (a)  That  the  formation  of  an  opinion 
or  impression,  based  upon  newspaper  report  or  rumor, 
shall  not  disqualify,  provided,  etc.  Nothing  is  said  in  the 
statute  tending  to  remove  the  disqualification  incident  to 
the  deliberate  formation  of  an  o-pinion,  or  to  the  forma- 
tion and  expression  of  such  an  opinion,  (b.)  As  to  the 
clause  in  the  statute,  introduced  parenthetically,  •'  con- 
"  cerning  the  truth  of  which  he  has  expressed  no  opinion," 
if  construed  as  relating  to  an  expression  of  an  opinion  or 
impression  as  to  the  truth  of  the  report  or  rumor,  read  or 
heard,  it  is  not  subject  to  any  limitation  as  to  time,  but  must 
be  taken  as  it  reads.  If  the  juror,  upon  his  voir  dire, 
states  unequivocally  that  he  did  believe  and  does  believe  the 
truth  of  the  accounts  and  rumors  heard  and  read  by  him, 
and  which  formed  the  basis  of  the  opinion  as  to  the  guilt 
or  innocence  of  the  defendants,  formed  and  expressed  by 
him,  and  he  is  thereafter  challenged  upon  that  ground, 
then  the  juror,  at  the  time  of  the  challenge,  has,  in  the 
past  tense,  expressed  an  opinion  concerning  the  truth  of 
the  account  or  rumor;  and  there  is  no  warrant  for  the 
position  that  the  expression  of  the  opinion  must  have  pre- 
ceded the  examination  in  order  to  disqualify  him.  In 
other  words,  the  legislature  cannot  be  presumed  to 
have  intended  the  absurdity  that  the  casual  expression 
of  an  opinion,  as  to  the  truth,  for  example,  of  a  news- 
paper report,  communicated  upon  the  street  to  an 
acquaintance  or  friend,  should  be  effective  to  disqualify 
a  man  from  service  as  a  juror,  when  the  deliberate 
expression   of   the   same   opinion,   under    the   sanction    of 


337 

an  oath,  at  the  time  of  his  examination,  should  not  be  a 
ground  for  his  rejection. 

TJiis  disti)iction  is  not  technical,  but  substantial. 
The  reason  is  this:  If  the  opinion  is  based  on  reports 
which,  on  his  voir  dire  or  on  any  other  occasion,  the 
proposed  juror  says  he  believes  to  be  true,  this  state- 
ment furnishes  a  detnonstratioii  that  the  opinion, 
inasmuch  as  it  is  founded  on  accredited  report,  is  such 
as  will  require  evidence  for  its  removal.  Such  an 
opinion  is  not  hypothetical,  but  positive.  The  talcs- 
man  is  not  i)i  the  position  of  one  saying,  ''If  this 
"  report  be  true,  then  my  opinio7i  is,"  etc.;  but  he  says 
deliberately :  "  I  believe  what  I  have  heard  and  read 
"  to  be  true,  and  because  I  believe  the  truth  of  this 
"  report,  I  have  a  positive  opinion  on  the  question  of 
"  the  guilt  of  the  accused!'  Clearly,  this  opinion 
would  disqualify,  and  it  ivas  manifest  error  for  the 
court  to  irnport  into  the  interpetation  of  the  statute 
a  provision  which,  contrary  to  the  manifest  intention 
of  the  legislature,  zvotild  make  the  statute  palpably 
obnoxious  to  the  constitutional  objection  above  con- 
sidered. 

2.  We  maintain  that  it  was  a  proper  subject  of  inquiry 
as  to  the  extent  to  which  the  prejudice  of  the  proposed 
juror  against  certain  classes  of  citizens,  to  wit:  socialists, 
communists  and  anarchists,  would  affect  the  credence  by 
the  proposed  juror  of  the  testimony  of  the  defendants,  in 
the  event  of  its  being  shown  by  proofs,  or  admitted,  that 
the  defendants  belong  to  such  classes;  and  also,  that  it  was 
proper  to  inquire  whether  the  verdict  of  the  juror  would, 
in  the  juror's  opinion,  be  influenced  by  the  fact  supposed. 
Certainly  such  inquiry  and  examination  were  proper,  if 
for  no  other  reason  than  for  the  purpose  of  informing  de- 
fendants, so  that  they  could  intelligently  determine  whether 


338 

or  not  they  should  exercise,  in  the  case  of  the  proposed 
juror,  their  right  of  peremptory  challenge,  even  if  the 
answers  to  the  proposed  inquiries  did  not  furnish  ground 
to  sustain  a  chailenge_/tir  catise. 

3.  If,  having  formed  a  decided  opinion  or  having  ex- 
pressed it,  or  as  to  having  a  bias  or  prejudice,  the  juror 
answers  that  he  has  formed,  or  formed  and  expressed  such 
an  opinion,  that  he  cannot  try  the  case  fairly,  he  stands 
disqualified  by  the  law ;  notwithstanding  that,  by  a  teasing 
and  coaching  process,  he  may  be  final!}'  got  to  say  he 
thinks  he  can  try  the  case  fairly.  A  fortiori,  if  he  says 
six  times  that  he  cannot  \xy  the  case  fairly,  and  once  that 
he  can,  he  is  the  more  clearly  disqualified. 

We  have  stated  the  rulings  of  Judge  Gary  as  to  the 
competency  of  jurors  and  our  positions  as  to  the  law  on 
these  points.  We  now  beg  leave  to  refer  your  Honors  to 
the  examinations  of  jurors  in  this  case,  for  the  purpose 
of  illustrating  and  proving  what  we  have  asserted.  We 
give  the  substance  of  the  examination,  and  in  some  cases 
the  words. 


III.     EX.\MINATIONS  OF  JURORS  AS  ILLUSTRATING 
JUDGE  GARY'S  RULINGS. 

Melon  T.  Carev,  on  the  first  day  (Vol.  A.,  117 
to  121),  discloses  that  he  had  read  an  account  of  the 
case,  had  talked  of  it,  believed  what  he  had  heard  and 
read  to  be  true,  and  had  formed  and  expressed  an  opinion 
as  to  the  guilt  or  innocence  of  defendants.  This  jury- 
man also  expressed  the  belief  that  he  could  try  the  case 
fairly.  He  was  asked  the  question  whether  that  was 
such  an  opinion  as  would  require  evidence  to  remove. 

The  court  decided  that  was  an  incompetent  question. 


339 

because  it  called  for  the  opinion  of  the  juror  as  to  the 
future  effect  of  evidence  upon  his  mind.  The  defend- 
ants excepted.  This  juror  was  subsequently  challenged 
for  cause,  but  upon  another  ground. 

Frank  Jacobson  (i  A.,  43;  Vol.  A.,  312  to  321) 
said  he  had  not,  previous  to  this  examination,  expressed 
an  opinion  about  the  truth  of  the  newspaper  accounts  or 
rumors  on  which  he  based  the  opinion  of  the  guilt  or  in- 
nocence of  the  defendants,  but  admitted  on  his  voir  dire 
that  he  now  believed  the  newspaper  accounts  and  riinwrs 
■on  -which  he  fortned  and  expressed  his  opinion  as  to  the 
guilt  or  innocence  of  the  defendants,  and  that  he  still  en- 
tertained that  opinion.  He  also  said  he  believed  he  could 
try  the  case  fairly.  This  panelman  was  challenged  for 
cause,  the  court  overruled  this  challenge,  taking  the 
position  in  his  ruling  that  if  a  juryman  had,  be- 
fore his  examination,  read  an  account  of  the  circum- 
stances, and  then  expressed  an  opinion  that  he  believed 
the  accounts  which  he  read  to  be  true,  and  upon  those  ac- 
counts had  formed  and  expressed  an  opinion  as  to  the 
guilt  or  innocence  of  the  defendants,  he  was  subject  to 
challenge  for  cause;  but  if  he  had  not,  previous  to  his  ex- 
amination, expressed  an  opinion  that  he  believed  that  ac- 
count, but,  for  the  first  time,  on  his  voir  dire,  stated 
that  he  does  believe  the  account,  and  upon  that  belief  had 
formed  and  expressed  and  still  entertained  that  opinion  of 
the  guilt  or  innocence  of  the  accused,  that  did  not  con- 
stitute a  ground  for  challenge. 

John  Johnson  (i  A.,  53;  Vol.  B,  155  to  159) 
upon  his  examination,  stated  that  he  had  heard  and 
read  the  reports  concerning  the  Haymarket  affair, 
and  had  discussed  the  matter  from  time  to  time,  and 
had  formed  and  expressed  an  opinion  as  to  the  guilt  or  in- 
nocence of  the  defendants,  which  he  still  entertained,  and 


34° 

that  he  believed  in  substance  what  he  had  read  and  heard^ 
He  stated  further  that  the  opinion  was  such  as  miglit  pos- 
sibly be  removed  by  evidence  contrary  to  what  he  had 
read.  He  also  said  he  believed  he  could  tr\-  the  case 
fairly.  When  asked  as  to  whether  his  opinion  was  such 
as  would  require  evidence  for  its  removal,  and  whether  it 
would  require  strong  evidence,  the  court  refused  to  allow 
the  questions  to  be  answered,  and  overruled  the  challenge 
for  cause,  to  which  defendants  excepted,  and  the  juror-was 
then  challenged  peremptorily. 

Clarence  H.  Hill  (i  A.,  53;  Vol.  B,  187  to  196) 
stated  that  he  had  read  accounts  of  the  Haymarket  meet- 
ing, had  conversations  in  reference  to  it,  and,  apon  the  in- 
formation derived  from  all  sources,  had  formed  an  opin- 
ion as  to  the  guilt  or  innocence  of  the  defendants,  which 
he  still  entertained,  and  which  was  based  upon  his  belief  in 
the  truth  a/  what  he  had  read,  and  that  he  was  prejudiced 
against  socialists,  anarchists,  etc.  He  was  finally  asked: 
"  Q.  You  have  no  opinions,  biases  or  prejudices  which 
"  it  vjotdd  require  testimony  to  overcome?  A.  Tes,  sir; 
"  /  have"  This  juror  was  challenged  for  cause,  the 
challenge  was  overruled,  to  which  defendants  excepted, 
and  he  was  thereupon  challenged  peremptorily  by  de- 
fendants. 

W.  N.  Upham  was  examined  tlie  first  day.  He 
stated  that  he  had  read  the  newspaper  accounts  of  the 
Haymarket  affair,  and  had  conversations  with  various  per- 
sons upon  the  subject;  that  from  all  sources  of  information 
he  had  formed  an  opinion  upon  the  question  of  the  guilt  or 
innocence  of  some  of  the  defendants,  which  he  believed  he 
had  expressed  to  others;  that  he  believed  to  be  true  the 
statements  -which  he  had  heard  and  read,  and  that  he  ex- 
pressed a  belief  that  what  he  had  heard  was  true.  Subse- 
quently he  modified  these  statements  through  the  following 


341 

question  and  answer  by  and  to  the  court:  "  Q.  The  question 
*'  is  whether  you  have  ever  formed  or  expressed  an  opin- 
"  ion  as  to  the  guilt  or  innocence  of  any  one  of  these  eight 
"  men  of  the  murder  of  Officer  Degan?  A.  I  can't  say 
"  what  I  have  expressed  in  words,  but  my  opinion  was  thai 
'<■  some  of  them  are  guilty.''''  He  also  said  he  believed  he 
■could  render  a  fair  verdict  on  the  evidence.  The  Court: 
^^  That  is  not  any  ground  of  challenge  under  the  law." 

He  stated  further  that  he  still  had  the  same  opinion  as 
to  the  guilt  of  some  of  the  defendants,  and  then  the  ques- 
tion was  asked  as  to  whether  testimony  would  be  required 
to  remove  that  opinion  before  he  would  be  unbiased  and 
free  to  act  upon  the  evidence.  The  question  was  objected 
to,  quite  full}'  argued,  and  the  objection  was  then  sustained 
"by  the  court.  This  juror  was  challenged  for  cause,  the 
challenge  was  overruled,  the  defendants  excepted,  and 
then  challenged  peremptorily,  (i  A.,  36;  Vol.  A.,  pp.  61 
to  70.) 

E.  F.  Shedd,  examined  on  Wednesday,  June  23d,  stated 
that  he  had  read  of  the  Haymarket  affair  in  the  papers,  and 
at  the  lime  formed  an  opinion  as  to  the  guilt  or  innocence 
■of  the  defendants,  which  opinion  he  still  entertained,  no 
circumstances  having  occurred  to  change  it.  That  such 
opinion  was  formed  from  the  belief  by  him  of  the  truth 
of  the  statements  which  he  had  heard  and  read,  and  that 
he  had  expressed  the  opinion  to  others.  He  said  also,  "  I 
"  would  have  my  opinion,  my  own  opinion,  until  it  was  set 
"  aside  by  the  whole  testimony,"  and  that  it  woidd  require 
evidence  to  remove  the  opinion  which  he  had.  ( i  A.,  45  ; 
A.,  390.)  He  was  thereupon  challenged  for  cause,  and 
a  long  argument  ensued  (Vol.  A.,  pp.  391  to  399),  at  the 
end  of  which  the  court  overruled  the  challenge,  and  the 
defendants  excepted. 

The  same   person  was  thereupon   further  interrogated. 


342 

and  stated  that  he  had  a  prejudice  against  communists^ 
anarchists  and  socialists  as  a  class,  which  was  of  such  a 
character  that  it  would  prevent  his  listening  to  the  tes- 
timony and  rendering  an  impartial  verdict  if  it  were 
conceded  or  proved  that  the  defendants  belonged  to  such 
class.  He  stated  further:  "  I  think  the  mere  fact  oj  their 
"  beitig  communists  woidd  influence  my  opinion  as  a  juror. 
"  Q.  And  therefore  you  would  not  find  the  same  verdict 
"  upon  the  same  evidence  as  you  would  if  they  were  not 
"so — you  would  require  additional  evidence?  A.  Yes, 
"  sir  ";  and  that  he  "  would  find  the  dejendants  guilty  upon 
"  less  evidence  than  if  they  were  lazv-abiding  citizens.'''' 
But  he  also  said  that  he  thought  he  could  try  the  cause 
fairly.  The  challenge  for  cause  was  renewed  upon  this 
examination  (Vol.  A.,  400),  was  overruled,  the  defend- 
ants excepted,  and  thereafter  challenged  said  Shedd  per- 
emptorily. 

A.  F.  Bradley  (i  A.,  42;  Vol.  A.,  198  to  206)  stated 
that  he  had  heard  and  read  accounts  of  the  Haymarket 
meeting,  that  he  had  a  strong  prejudice  against  anarchists, 
socialists  and  communists,  so  strong  that  he  could  not  tell 
whether  it  would  affect  his  verdict  if  selected  as  a- 
juror  in  this  case  or  not.  He  was  then  asked  whether 
he  would  receive  the  testimony  of  anarchists,  communists 
or  socialists  as  freely  and  readily  as  that  of  other  wit- 
nesses, which  question  was  objected  to,  and  the  objection 
sustained,  to  which  defendants  excepted.  Thereupon  the 
following  question  and  answer  occurred:  "  Q.  You 
"  feci  that  you  could  lay  the  prejudice  all  to  one  side  and 
"  be  governed  exclusively  by  the  testimony  as  it  was  in- 
"  troduced,  and  the  law  governing  the  case  as  given  you 
"by  the  court?  A.  No,  I  don't  know  about  that,  as  I 
"  told  you  before.  I  don't  know  whether  I  could  or  not. 
"  I  don't    know  whether   I    can    answer    that,  because    I 


343 

"  don't  know."  But  the  juror  also  stated  that  he  thought 
he  could  render  a  fair  and  impartial  verdict.  The  juror 
was  thereupon  challenged  for  cause,  the  challenge  over- 
ruled, and  the  defendants  excepted,  and  Mr.  Bradley  was 
subsequently  challenged  peremptoril}'  by  the  defendants. 
William  Neil(i  A.,  57;  Vol.  C,  50  to  57)  stated  that 
he  had  heard  and  read  about  the  Ha3'market  difficulty  and 
believed  enough  of  what  he  had  so  heard  atid  read  to  form 
an  opinion  as  to  the  guilt  or  innocence  of  some  of  the  de- 
fendants, which  he  still  entertained,  but  thought  strong 
evidence  to  the  contrary  would  ciiange  tJiat  opinion;  that 
he  had  expressed  said  opinion  and  said,  "  it  would  take 
"  pretty  strong  evidence  to  change  my  opinion."  And 
again  he  said,  "it  would  take  strong  evidence  to  remove 
"  the  impression  that  I  now  have."  That  he  believed  his 
opinion,  based  upon  what  he  had  heard  and  read,  would 
accompany  him  through  the  trial,  and  would  influence  him 
in  determining  and  getting  at  a  result.  But  he  also  stated 
that  he  believed  he  could  give  a  fair  verdict  on  whatever 
evidence  he  should  hear.  Thereupon  the  juror  was  chal- 
lenged for  cause  on  all  his  answers,  and  particularly  on  the 
ground  that  he  had  expressed  the  opinion  which  he  still 
entertained,  which  challenge  was  overruled;  the  defend- 
ants excepted,  and  thereupon  the  juror  was  challenged 
peremptorily. 

James  S.  Oakley  (i  A.,  59;  Vol.  C,  91  to  102),  stated 
that  he  had  heard  and  read  of  the  Haymarket  difficulty, 
and  believed  enough  of  what  he  had  so  read  and  heard  to 
form  an  opinion  as  to  the  guilt  or  innocence  of  some  of 
the  defendants,  which  opinion  he  had  expressed  and  still 
entertained.  He  was  asked  if  that  opinion  was  so  strong 
and  firmly  fixed  that  it  would  take  strong  evidence  to  the 
contrary  to  remove  it.  The  question  was  refused  by 
the  court,  and  the  defendants  excepted.   He   also  stated 


344 

that  he  beheved  he  could  determine  the  question  of  the 
guilt  or  innocence  of  the  defendants  upon  the  evidence 
alone;  but  he  still  further  stated  as  follows: 

"  Q.  Still  you  think  that  the  opinion  vou  now  have  and 
"  what  you  have  read  and  heard  would  influence  you  in 
"arriving  at  a  verdict?  A.  I  do.  Q.  Ton  do  think 
it  -would  influence  you?  A.  /  doP  He  was  further 
asked  as  to  his  prejudice  against  socialists,  anarchists,  etc., 
and  admitted  that  he  had  such  prejudice,  and  was  then 
asked-  "  Q.  If  it  should  be  proven  or  conceded  on  the 
"  trial  of  this  case  that  the  defendants,  or  some  of  them, 
"  are  anarchists  or  communists,  would  this  opinion  of  yours 
"  in  regard  to  these  classes,  that  you  have  now  expressed, 
"  influence  you  in  arriving  at  a  just  and  impartial  verdict?" 
The  question  was  refused  by  the  court  and  the  defendants 
e.xcepted.  Mr.  Oakley,  again  stating  that  he  had  ex- 
pressed his  opinion  as  to  the  guilt  or  innocence  of  the  de- 
fendants, or  some  of  them,  was  challenged  for  cause  on 
all  his  answers,  and  particularly  on  the  ground  of  the  ex- 
pression of  his  opinion.  The  challenge  was  overruled, 
defendants  excepted,  and  challenged  peremptoril3\ 

H.  F.  Chandler  (i  A.,  Vol.  C,  149  to  157)  stated  that 
he  had  read  and  heard  of  the  Haymarket  matter,  and  from 
what  he  had  so  read  and  heard,  ha.dyor»icd  an  opinion  as  to 
the  guilt  or  innocence  of  one  or  more  of  the  defendants, 
which  he  still  entertained,  and  which  he  /lad  expressed. 
That  he  believed  in  the  truth  of  the  statements  he  had  read 
and  heard,  and  had  never  questioned  it.  He  was  asked 
and  answered  as  follows:  "  Q.  Is  that  a  decided 
"  opinion  as  to  the  guilt  or  innocence?  A.  It  is  a  dc- 
"  cidcd  opinion:  yes.  sir.  Q.  Your  mind  is  prett}^  well 
"  made  up  now  as  to  their  guilt  or  innocence?  A.  Yes, 
"  sir.  Well,  it  will  take  evidence  to  satisfy  me  on  that 
"  point.     I  don't  know.     I  have  simply  heard  one  side  of 


345 

"  the  case.  I  have  just  read  the  newspaper  matter.  I 
"  have  formed  an  opinion  as  far  as  that  goes.  Q.  Would 
"  it  be  hard  to  change  your  opinion?  A.  It  might  be 
"  hard;  I  can't  say.  I  don't  know  whether  it  would  be 
"  hard  or  not." 

He  also  stated  that  he  had  a  strong  prejudice  against 
socialists,  anarchists  and  communists,  and  was  then  asked 
if  that  prejudice  would  influence  his  verdict;  which 
question  was  refused  by  the  court,  and  the  defendants 
excepted.  He  further  stated  that  he  thought  he  had 
expressed  his  opinion  as  to  the  guilt  or  innocence  of  the 
defendants  quite  frequently,  and  was  thereupon  chal- 
lenged for  cause. 

The  court  thereupon  proceeded  to  interrogate  Mr. 
Chandler  (Vol.  C,  210  to  213).  He  stated  that  he 
had  an  opinion  as  to  whether  the  defendants  did  the  act 
which  caused  the  death  of  Degan,  but  that  that  opinion 
was  based  wholly  upon  what  he  had  heard  and  read 
and  not  from  any  conversation  with  any  person  who 
was  present  at  the  time  of  the  transaction.  Thereupon 
the  court  announced  the  following  ruling  (pages  212  to 
213):  "It  don't  seem  to  me  that  it  makes  any  difference 
"  in  the  competenc}'  of  a  juror  whether  he  has  simply 
"  formed  an  opinion,  or  expressed  an  opinion  which  he 
"  has  formed.  I  don't  see  how  it  makes  a  particle  of 
"  difference  in  his  state  of  mind.  Every  man  is  in  favor 
"  of  justice  and  fair  dealings  as  between  other  people 
"  where  his  own  interests  are  not  aflected;  and  as  I  have 
"  said  before,  I  think  it  must  be — I  think  it  is  in  the  nature 
-"  of  an}'  man,  when  he  wants  to  find  out  the  truth  of  an}- 
^'  transaction,  that  he  will,  when  the  original  sources  are 
"  presented  to  him,  follow  them,  and  not  any  hearsay  that 
*'  he  has  ever  heard." 

The   challenge   for  cause  was   thereupon   overruled,  to 


34^ 

which  defendants  exxepted,  and  then  challenged  Mr- 
Chandler  peremptorily. 

A.  L.  Ketchum  stated  that  he  had  read  and  heard 
about  the  Haymarket  difficulty  sufficiently  to  form  an 
opinion  as  to  the  guilt  or  innocence  of  some  of  the  de- 
fendants, which  opinion  he  had  expressed  and  still  enter- 
tained. Asked  the  question,  "  Is  it  a  strong  opinion  f  he- 
answered,  "1^5,  it  is."  He  stated,  however,  that  he  could 
render  a  fair  and  impartial  verdict,  and  be  governed  alone 
by  the  testimony  in  the  case.  But  he  admitted  that  he 
still  had  an  opinion,  which  was  firm.  Asked  if  it  would 
require  testimony  to  overcome  the  opinion,  the  court  re- 
fused the  question,  to  which  the  defendants  excepted 
(i  A.,  6i;  Vol.  C,  131  to  136). 

Further  examined  (Vol.  C,  179  to  180),  Mr. 
Ketchum  stated  that  he  had  formed  a  decided  opinion  as 
to  the  guilt  or  innocence  of  the  defendants,  which  he  still 
entertained  and  /lad  theretofore  expressed.  He  was  chal- 
lenged for  cause  on  all  his  answers,  the  challenge  was 
overruled,  and  the  defendants  excepted,  and  thereupon 
challenged  peremptorily. 

D.  F.  Swan  (i  A. ,63;  Vol.  C,  195  to  203)  stated  that 
he  had  read  and  heard  about  the  Haymarket  trouble;  had 
formed  an  opinion  as  to  the  guilt  or  innocence  of  the  de- 
fendants, or  some  of  them,  which  he  still  entertained,  and 
had  frequently  expressed.  That  the  opinion  was  firmly- 
fixed  in  his  mind  at  the  time  of  his  examination.  He 
stated,  however,  that  he  believed  he  could  be  governed 
by  the  evidence  and  the  law;  that  he  had  discussed  the 
case  with  his  neighbors  and  friends,  and  was  prejudiced 
in  a  general  way  against  labor  organizers.  The  court  re- 
fused to  allow  him  to  be  questioned  as  to  whether  his  ad- 
mitted prejudice  against  socialists,  anarchists,  etc.,  would 
influence    his    verdict,    to     which     defendants    excepted- 


347 

Thereupon  the  defendants  challenged  Mr.  Swan  for 
cause,  when  the  court  interrogated  him  as  follows  (page 
203):  "  Q.  Have  you  any  feelings  against  either  one 
"  0/  them  {the  defendants),  other  than  such  as  grows  out 
"  of  what  you  have  heard  about  their  connection  with  the 
"  Haymarket?  A.  No,  sir.  Q.  That  is  the  only  feel- 
"  ing  you  have?  A.  Yes,  sir.  Q.  And  that  feeling  is- 
"  based  upon  the  assumption — you  have  taken  it  for 
"  granted  that  what  you  have  read  and  heard  about  them. 
"  was  true,  substantially?  A.  Yes,  sir.  Q.  Now,  do- 
"  you  believe  you  can  sit  here  as  a  juror  and  listen  to  the 
"  evidence  on  both  sides  that  may  be  presented  here  on 
"  their  trial,  and  from  that  evidence  only  make  up  your 
"  mind  fairly  and  impartially  as  to  what  the  real  truth  is 
"  about  their  connection  with  the  matter?  A.  I  guess  I 
"  could.  Q.  Without  any  reference  to  what  you  have 
"  heard  about  it  heretofore,  or  what  you  have  read  about 
"  it,  or  what  you  feel  about  it?     A.     Yes,  sir." 

Thereupon  the  challenge  for  cause  was  overruled,  to- 
which  defendants  excepted,  and  thereupon  challenged 
peremptorily. 

Edw^ard  Knauer  (i  a.,  60;  Vol.  C,  103  to  109). 
stated  he  had  formed  a  pretty  strong  opinion  as  to  the 
guilt  or  innocence  of  the  defendants;  had  expressed  that 
opinion,  and  still  entertained  it.  Thought  he  could  deter- 
mine the  guilt  or  innocence  of  defendants  upon  the  proof 
presented  in  court,  but  stated  also  that  //  zvould  take  pretty 
good  evidence  to  change  his  present  opinion. 

In  answer  to  questions  by  the  court,  Mr.  Knauer  stated 
he  had  no  ill  feeling  against  any  of  the  defendants  person-, 
ally,  that  he  would  go  by  the  evidence,  but  his  opinion 
would  influence  him  some.  He  said:  "I  believe  I  could 
"  take  the  evidence,  although  some  of  it  I  have  my  opin- 
"  ion  of."     Q.     You  believe  that  you  could  take  the  evi- 


348 

'•  dence  alone,  and  not  be  influenced  by  any  opinion  you 
'■  have  had  hitherto,  or  that  you  have  now?  Do  you  be- 
"  lieve  you  can  or  cannot?     A.      Well,  I   guess   I  could." 

Further  interrogated  by  counsel  for  the  defense,  Mr. 
Knauer  said  that  in  making  up  his  mind  as  to  what  the 
facts  are  in  the  case,  after  all  the  evidence  should  be  in, 
he  xvould  to  some  extent  call  upon  the  facts  now  in  his  mind 
and  be  influenced  some  thereby,  but  he  believed  that  he 
■could  arrive  at  a  fair  and  impartial  verdict.  He  admitted 
a  strong  prejudice  against  anarchists,  socialists  and  com- 
munists. He  was  asked  whether  he  believed  that  that 
prejudice  would  influence  him  in  a  trial  in  which  the  de- 
fendants were  conceded  to  be  anarchists.  Question  re- 
fused b)^  the  court  and  defendants  excepted.  Mr.  Knauer 
■was  challenged  for  cause,  the  challenge  was  overruled,  to 
which  defendants  exxepted,  and  challenged  peremptorily. 

F.  I.  Wilson-  (^i  A.,  65;  Vol.  C,  2S4  to 
289)  stated  he  had  formed  ajid  expressed  an  opin- 
ion as  to  the  guilt  or  innocence  of  some  of  the 
defendants,  based  upon  what  he  had  read  and 
heard  about  the  Hay  market  trouble.  That  he  be- 
lie\'ed  such  opinion  ivould  influence  him  in  rendering  his 
verdict.  In  answer  to  the  court's  question,  he  stated  that 
he  had  no  acquaintance  with  any  of  the  defendants. 
■"  Are  you  conscious  in  j'our  own  mind  of  any  wish  or  dc- 
•"  sire  that  there  should  be  evidence  produced  on  this 
<'  liial  which  shall  prove  some  of  these  men,  or  any  of 
"  iliem,  to  be  guilty?  A.  Well,  I  think,  possibh',  I 
■"  have.  I  think  I  have."  The  only  feeling  he  had 
against  them  was  based  upon  having  taken  it  for  granted 
that  what  he  read  about  them  was  in  the  main,  or  part  of 
it  at  least,  true.  He  believed  that,  sitting  as  a  juror,  the 
ffrct  of  the  evidence,  either  for  or  against  the  defendants, 
would  be  increased  or  diminished  hy  what  he  had  heard  or 


349 

read  about  the  case.  Thereupon  said  Wilson  was  chal- 
lenged for  cause;  challenge  overruled,  and  defendants 
excepted.  Further  on  he  modified  his  answers,  upon 
further  questions  by  the  court,  by  saying:  "  Well,  I  feel 
"  that  I  hope  that  the  guilty  one  will  be  discovered  or 
"  punished;  not  necessarily  these  men.  *  *  *  Q. 
"  Are  you  conscious  of  any  other  wish  or  desire  about 
"  the  business  than  that  the  actual  truth  may  be  dis- 
"  covered?  A.  I  don't  think  I  am."  Thereupon  the 
court  overruled  the  challenge  for  cause;  defendants  ex- 
cepted, and  challenged  said  Wilson  peremptorily. 

John  Connolly  (i  A.,  67;  Vol.  C,  338  to  344)  said 
he  had  heard  and  read  about  the  Haymarket  meeting; 
formed  and  frequently  expressed  a  pretty  strong  opinion 
as  to  the  guilt  or  innocence  of  the  defendants;  thought  he 
was  open  to  conversion,  and  might  change  his  opinion  if 
evidence  contrary  to  the  sajne  -juould  be  presented.  Thought 
he  could  determine  the  case  upon  proof  presented  in  court 
"if  I  tried  pretty  hard";  thought  he  zvonld  be  influenced 
by  his  opinion  in  determining  the  question  whether  the 
proof  presented  was  sufficient  in  fact  to  prove  the  guilt 
of  the  defendants  beyond  all  reasonable  doubt.  Where- 
upon Mr.  Connolly  was  challenged  for  cause. 

In  answer  to  questions  of  the  court,  he  said  he  could 
fairly  and  impartially  try  the  case  upon  the  evidence  pre- 
sented in  court;  "  at  least  I  would  try  hard  to."  Didn't 
know  any  of  the  defendants;  had  no  feeling  about  them 
one  way  or  the  other,  except  what  grows  out  of  what  he 
had  read  or  heard  about  them. 

Whereupon  said  challenge  for  cause  was  overruled; 
defendants  excepted,  and  said  Connolly  was  peremptorily 
challenged  by  defendants. 

George  N.  Porter  (i  A.,  77;  Vol.  D,  ipt  to  204) 
stated  he  had  formed  and  expressed  an  opinion   as  to  the 


3SO 

iguilt  or  innocence  of  defendants,  which  opinion  he  thought 
■would  bias  his  judgment.  He  would  try  to  go  by  the  evi- 
-dence,  but  what  he  had  read  would  have  a  great  deal  to  do 
■with  his  verdict.  His  mind  was  certainly  biased  now,  and 
it  would  take  a  great  deal  of  evidence  to  change  it. 
Whereupon  said  Porter  was  challenged  for  cause. 

On  examination  by  the  state,  in  answer  to  the  question 
■whether  he  beheved  he  could  determine  alone  from  the 
proof  the  guilt  or  innocence  of  the  defendants,  without 
consulting  his  opinion,  or  without  being  influenced  by  it, 
he  said,  "  I  hardly  know  how  to  answer  that  question. 
"  I  should  certainly  try  to."  Being  asked  the  same  ques- 
tion over  again,  he  said:  "  Well,  I  rather  think  I  could." 

In  answer  to  the  court's  question,  Mr.  Porter  said:  "I 
-"  think  what  I  have  heard  and  read  before  I  came  into 
*'  court  would  have  some  injluence  with  me."  He  was 
afraid  that  what  he  had  read  and  heard  before  and  the 
opinion  he  entertained  would  have  some  effect  upon  the 
kind  of  verdict  which  he  should  render.  But  finally  he 
said  he  believed  he  could  fairly  and  impartial!}'  tr}'  the 
case  and  render  a  verdict  according  to  the  law  and  the 
-evidence;  he  certainly  would  try  to.  Challenge  for  cause 
was  overruled  by  the  court,  and  defendants  excepted. 

Upon  further  inquiry,  by  defendants'  counsel,  Mr. 
Porter  admitted  that  he  had  a  prejudice  against  commun- 
ists, socialists  and  anarchists,  and  said  he  should  certainly 
try  to  go  by  the  evidence,  but  he  thought  in  this  case  it 
would  be  awful  hard  work  for  him  to  do  it.  He  should 
try  very  hard  to  do  it,  and  he  believed  he  could. 
He  was  asked  whether  he  ever  expressed  his  opinion  that 
he  believed  the  narration.  He  said:  "  Well,  I  don't  know 
"  that  I  ever  said  it  in  that  manv  words,  but  I  meant  that, 
-"  of  course,  certainly.  =<=  *  *  Q.  You  don't  know, 
-"  then,  that  you  ever  did  say  that  you  beheved  what  you 


351 

•"  had  read,  or  that  you  believed  what  you  heard?  A. 
-"  Why,  we  have  talked  about  it  there  a  great  many  times, 
"  and  /  /lave  always  expressed  my  opinion.  I  believe  what 
"  /  liave  read  in  the  papers — believe  thai  the  parties  are 
-"  guilty.  Q.  Now,  then,  you  say  that  you  did,  in  the 
•^'  discussion  of  it,  in  substance,  say  that  you  believed  what 
"  3'ou  had  read  in  the  papers?  A.  Yes,  sir;  I  have. 
^'  Q.  And  it  was  from  what  you  had  read  in  the  papers 
"  that  you  formed  an  opinion.     A.     Yes,  sir." 

Whereupon  counsel  for  defendants  renewed  their  chal- 
lenge for  cause  to  Mr.  Porter. 

Further  interrogated  by  the  court,  whether  he  had 
-expressed  an  opinion  as  to  the  truthfulness  of  the  account 
itself  which  he  had  read  or  heard,  he  said:  "  Well,  that  is 
"  a  pretty  hard  question  to  answer;  I  don't  know.  I 
-"  have  expressed  myself  as  believing  it.  I  don't  know. 
"  Q.  Well,  believing —  A.  Believing  what  I  read  in 
"  the  papers.  Q.  Believing  the  opinion  that  you  had 
"  about  the  case  and  the  defendants,  or  believing  the 
"  stor\'  as  it  was  printed?  A.  Why,  believing,  of  course, 
"  the  opinion  of  the  defendants,  and  the  story,  believing 
"  it  all,  believing  it  just  as  I  read  it  in  the  papers."  *  *  * 
"  Q.  Did  you  ever  express  any  opinion  as  to  whether 
"  the  newspapers  had  got  bodily  or  the  substance  of  the 
"  story  right  or  not?  A.  Oh,  I  don't  know  that  I  ever 
"  did;  no,  sir." 

This  is  an  instance  of  what  we  call  teasing  the  Juryman 
up  to  the  proper  point,  or  "  coaching"  him,  by  the   court. 

The  challenge  for  cause  was  overruled  by  the  court,  de- 
fendants excepted,  and  challenged  Mr.  Porter  perempto- 
rily. 

H.  N.  Smith  (A.,  8i;  Vol.  D,  311  to  315)  said  he 
had  formed  quite  a  decided  opinion  as  to  the  guilt  or  inno- 
cence of  the  defendants;  had  read  the  newspapers  at  the 


352 

time,  had  had  frequent  conversations  in  regard  to  the  mat- 
ter; had  expressed  his  opinion  and  still  entertained  it.  He 
said  he  was  afraid  he  would  listen  a  little  more  intently  to 
testimony  -which  concurred  with  his  opinion  than  to  testi- 
mony on  the  other  side.  "  Q.  That  is,  you  would  be  willing 
"  to  have  your  opinion  strengthened,  and  would  hate  very 
"  much  to  have  it  dissolved?  A.  I  would.  Q.  Under 
"  these  circumstances,  do  you  think  you  could  render  a 
"  fair  and  impartial  verdict?  A.  I  don't  think  1  could. 
"  Q.  You  think  you  would  be  prejudiced?  A.  I  think 
"  /  would  be  prejudiced,  because  my  feeling  is  very  bitter. 
«  *  *  *  Q_  Xhe  question  is  whether  or  not  jour 
"  prejudice  would  in  any  way  influence  vou  in  coming  to 
"  an  opinion,  arriving  at  a  verdict?  A.  I  think  it  would. 
"  Q.  You  think  it  would  take  less  testimon}'  as  a  jury- 
"  man  to  come  to  the  conclusion  which  you  now  have 
"than  to  come  to  the  opposite  conclusion?  A.  Yes, 
"sir.  Q.  That  is  your  best  judgment  now?  A.  Yes, 
'•  sir."  Whereupon  said  Smith  was  challenged  for  cause 
by  the  defendants. 

On  examination  by  the  state,  this  talesman  said  he 
thought  he  could  determine  the  guilt  or  innocence  of  the 
defendants  upon  the  proof  presented  in  court  regardless 
of  what  he  had  read  or  heard,  or  of  his  opinion.  Upon 
questions  by  the  court  he  said  he  didn't  know  an}-  of  the 
defendants;  he  had  a  personal  feeling;  some  of  the  offi- 
cers were  personal  friends  of  his,  but  he  had  no  feeling 
towards  any  of  the  defendants  upon  any  ground  other 
than  what  he  had  heard  or  read.  He  had  talked  zuith  per- 
sons who  were  at  the  Haymarket  at  the  time  of  the  explo- 
sion, but  the  name  of  no  man  was  mentioned. 

The  challenge  for  cause  was  overruled,  the  defendants 
excepted  and  challenged  said  Smith  peremptoril}'. 

Isaac    W.    Pinkham   (A.,  82;  Vol.  D,  339  to   344) 


353 

said  he  had  formed  and  expressed  an  opinion  as  to  the 
guilt  or  innocence  of  the  defendants,  which  he  still  enter- 
tained. That  opinion  would  not  influence  him  if  the  evi- 
dence showed  that  he  zvas  in  error.  He  believed  he  could, 
notwithstanding  that  opinion,  Hsten  to  the  testimony  and 
the  charge  of  the  court  and  render  an  impartial  verdict. 
He  thought  he  could  change  his  opinion  if  he  saw  any 
necessity  for  it.  The  evidence  would  have  to  show  that  he 
was  in  error.  "I  suppose  that  my  present  opinion  would 
"  naturally  prejudice  me  slightly.  I  do  not  think  that 
"  would  prejudice  me  so  that  the  evidence  would  not  be 
"  weighed.     *     *     * 

"  I  believe  I  could  weigh  the  evidence.  I  can't  say 
"  any  more  than  that.  I  can't  tell  until  the  time  comes. 
"  Q.  You  don't  know  whether  you  could  lay  your  opin- 
"ion  aside  or  not?  A.  If  the  evidence  should  show  I 
"  was  in  error,  I  would.  Q.  The  evidence  would  have 
"to  show  you  were  in  error  before  you  would  change 
"your  mind?  A.  Yes,  sir.  Q.  In  other  words,  it 
"  would  take  testimony  to  overcome  your  present  opinion  ? 
"  A.      Yes,  sir."     Challenged  for  cause  by  defendants. 

Upon  examination  by  the  state,  this  talesman  said  he 
could  determine  the  guilt  or  innocence  of  the  defendants 
upon  the  proof  presented  in  court  alone,  and  under  the 
instructions  of  the  court. 

The  challenge  for  cause  was  overruled,  defendants  ex- 
cepted, and  challenged  Mr.  Pinkham  peremptorily. 

Leonard  Gould  (A.,  97;  Vol.  E,  477  to  490)  said 
he  had  read  about  the  Haymarket  meeting,  had  discussed 
it,  and  had  formed  a  rather  decided  opinion  on  the  ques- 
tion of  the  guilt  or  innocence  of  the  defendants,  and  still 
entertained  that  opinion.  He  thought  he  could  be  per- 
suaded, thought  he  could  listen  to  the  evidence,  whatever 
evidence   was  offered.     Had   a  pretty  decided  prejudice 


354 

against  socialism,  did  not  believe  he  could  be  governed 
by  the  evidence  alone,  irrespective  of  all  prejudices  and 
opinions,  and  all  conclusions  he  then  had. 

Challenged  for  cause  by  defendants. 

On  examination  by  the  state,  he  said:  "  I  think  I  could 
"  weigh  the  evidence  impartially,  but  then  to  put  that 
"  thing  just  as  it  should  be  put,  when  you  come  to  sepa- 
"  rate  a  man's  idea  and  his  prejudice,  but  take  the  two 
"  together,  1  really  don't  know  that  I  could  do  the  case 
"justice.  *  *  *  If  I  was  to  sit  on  the  case,  I  should 
"just  give  my  undivided  attention  to  the  evidence,  and 
"  calculate  to  be  governed  by  that."  He  thought  he 
Gould  do  that. 

Further  interrogated  by  counsel  for  defendants,  he  said 
he  had  some  bias  and  some  prejudice  in  the  matter.  He 
should  do  just  the  very  best  he  could.  As  to  whether  he  could 
act  upon  the  proof  produced  and  the  charge  of  the  court 
uninfluenced,  unbiased  and  unswerved  by  any  prejudice, 
opinion  or  conclusion  that  he  then  had,  Mr.  Gould  said: 
'•  That  is  a  question  that  it  is  almost  impossible  for  a 
"  man  to  answer."  "  Q.  Do  j^ou  believe  that  you  can 
"  return  a  verdict,  under  the  evidence  and  proofs  and 
"  the  charge  of  the  court,  and  that  alone,  uninfluenced 
"  by  any  opinion,  prejudice  or  feeling  that  j-ou  now 
"  have?  A.  I  will  leave  out  the  last  part  of  that  question 
'^  entirely." 

The  court  ruled  that  the  question  was  improper,  on  the 
ground  of  ambiguity,  because  not  stating  whether  it 
meant  that  the  juror  would  be  uninfluenced,  or  the 
verdict  uninfluenced.  To  which  ruling  defendants  ex- 
cepted. We  respectfully  submit  that  this  question,  when 
printed,  does  not  seem  to  be  as  ambiguous  as  one  seeing 
from  the  other  side  might  imagine. 

Mr.  Gould  further  said  he   believed  what   he  had  read 


355 

and  heard,  and  his  opinion  was  formed  from  thai,  and  he 
supposed  it  was  true. 

"  Q.  I  want  to  ask  you  whether  you  believe  you  can 
"  listen  to  the  testimony  and  other  proofs  that  may  be  here 
"  introduced  in  court,  and  the  charge  of  the  judge,  and 
"  render  an  absolutely  impartial  verdict  in  this  case,  not- 
"  withstanding  your  present  opinion,  bias,  or  any  preju- 
"  dices  that  you  may  have?  A.  Well  that  is  the  same 
"  question  over  again.  Q.  Do  you  say  that  you  can't 
"  answer  it?  A.  Well,  I  answered  it  as  far  as  I  could 
"  answer  it.  *  *  *  Q.  You  say  you  don't  know 
"  that  you  can  answer  that  either  yes  or  no?  A.  No,  I 
"  don't  know  that  I  can." 

Challenge  for  cause  renewed. 

In  answer  to  the  question  by  the  court  whether  he  be- 
lieved that  he  could  fairly  and  impartially  render  a  ver- 
dict in  accordance  with  the  law  and  the  evidence,  he  said: 
"  Well,  in  a  general  way,  I  think  I  could  listen  to  the  law 
"  and  the  evidence  and  form  my  verdict  from  that.  *  * 
"  Q.  Now,  do  you  believe  that  you  can,  that  you  have 
'•  sulBciently  reflected  upon  it  so  as  to  examine  your  own 
"  state  of  mind,  then  say  yes  or  no?  A.  It  is  a  difficult 
"  question  for  me  tp  answer.  Q.  Well,  make  up  your 
"  mind  as  to  whether  you  believe  you  can  fairly  and  im- 
"  partially  render  a  verdict  in  accordance  with  the  law  and 
"  the  evidence.  Most  men  in  business  possibly  have  not 
"  gone  through  metaphysical  investigations  of  this  sort,  so 
"  as  to  be  prepared  to  answer  off-hand,  without  some 
"  reflection?  A.  Judge,  I  don't  believe  that  I  can  answer 
"  the  question.  Q.  Can't  you  answer  whether  you  believe 
"  you  know?  A.  I  should  try.  If  I  had  to  do  it  I 
"  should  do  the  best  I  could.  Q.  The  question  is, 
"  whether  you  believe  you  can  or  not.  I  suppose  Mr. 
^'  Gould,  that  you  know  the  law  is  that  no  man  is  to  be 


3S6 

*'  convicted  of  any  offense  with  which  he  is  charged  un- 
"  less  the  evidence  proves  that  he  is  guilty  beyond  a  rea- 
"  sonable  doubt?  A.  That  is  true.  Q.  The  evidence 
"  heard  in  this  case  in  court?  A.  Yes.  Q.  Do  you 
"  believe  that  you  can  render  a  verdict  in  accordance  with 
"that  law?  A.  Well,  I  don't  know  that  I  could.  Q. 
"  Do  you  believe  that  you  can ;  if  you  doti't  kno-ui  of  any 
"  reason  why  you  cannot,  do  you  believe  you  can? 
"  A.  I  could  not  answer  that  question.  *  *  * 
"  Q.  Have  you  a  belief,  one  way  or  the  other,  as  to 
«  whether  you  can  or  cannot?  A.  If  I  were  to  sit  on 
"  the  case,  I  should  get  just  as  near  to  it  as  possible,  but 
"  when  it  comes  to  laying  aside  all  bias  and  ail  preju- 
"  dice,  and  making  it  up  in  that  wa}-,  it  is  a  prett\-  tine 
"  point  to  them.  Q.  Not,  whether  j'ou  are  going  to 
"  do  it,  but  what  do  you  believe  you  can — that  is  the 
"  only  thing.  You  are  not  required  to  state  what  is 
"  going  to  happen  next  week,  or  the  week  after,  but 
"  what  do  you  believe  about  yourself,  whether  you  can 
"or  cannot?  A.  I  am  just  about  where  I  was  when  I 
"  started." 

The  same  question  was  asked  again.  Mr.  Gould  re- 
plied: "  Well,  I  believe  I  have  got  just  as  far  as  I  can  in 
"  reply  to  that  question."  *  *  *  "  Q.  This  question, 
"  naked  and  simple  of  itself,  is,  do  j'ou  believe  that  you 
"  can  fairly  and  impartially  render  a  verdict  in  the  case 
"  in  accordance  with  the  law  and  the  evidence?  A.  I 
"  believe  I  could." 

Question  by  counsel  for  defendants:  "  Do  you  believe 
"  that  you  can  do  that  uninfluenced  by  any  impression, 
"  prejudice  or  opinion  which  you  now  have?  A.  You 
"  bring  in  that  point  that  I  object  to,  and  I  do  not  feel 
"  quite  competent  to  answer." 

Challenged  for  cause  on  all  answers.     Challenge  over- 


357 

ruled.     Defendants   excepted,  and  challenged  Mr.  Gould 
peremptorily. 

The  examination  of  this  juror  shows  particularly  what 
ran  through  all  the  examinations.  After  the  juror  had 
stated  that  he  had  formed  and  expressed  an  opinion,  or 
that  he  could  not  try  the  case  fairly  and  impartially  with- 
out being  influenced  by  bias  or  prejudice,  six  or  eight 
times,  he  was  taken  in  hand  by  the  prosecution  and  by  the 
court,  and  coached  and  coaxed  up  to  a  point  where  he 
would  answer  once  that  he  thought  he  could.  He  was 
then  decided  by  the  court  to  be  a  competent  juror. 

We  respectfully  submit  this  examination  as  an  instance 
of  "  coaching^''  and  we  most  respectfully  suggest  that  wc 
iclieve  the  court  itself  was  not  representing  the  Goddess 
of  Justice,  and  was  not  blind,  and  was  not  holding  the 
-scales  level,  when  he  was  doing  this. 

Another  examination  which  admirably  illustrates  the 
same  process  of  questioning  by  the  representatives  of  the 
state  and  the  court,  and  the  Hne  of  ruling  adopted  by 
Judge  Gary,  was  that  of  James  H.  Walker  (i  A.,  104; 
Vol.  F,  35  to  42).  Mr.  Walker  said  that  he  had 
formed  an  opinion  on  the  question  of  the  guilt  or  inno- 
cence of  the  defendants  of  the  murder  of  Mr.  Degan, 
which  opinion  he  still  entertained,  and  had  expressed  to 
others.  Asked  as  to  whether  this  opinion  would  influ- 
•ence  his  verdict,  he  replied:  "Well,  I  am  willing  to 
"  admit  that  my  opinion  -would  handicap  my  judgment, 
"  possibl3^  I  feel  that  I  could  be  governed  by  the  testi- 
"  mony." 

Further  on  he  was  asked: 

"  Then  your  belief  now  is  that  you  could  listen  to  the 
"  testimony  and  any  other  proof  that  might  be  introduced, 
"  and  the  charge  of  the  court,  and  decide  upon  that 
"  alone,   uninfluenced,  unprejudiced  and   unbiased  by  the 


358 

"opinion  that  ydu  now  have?  A.  No,  I  don'' t  say  that, 
"  Q.  That  is  what  I  asked  you?  A.  I  said  /  would  be 
"  handicapped."  He  also  stated  that  he  was  prejudiced 
against  socialists,  anarchists  and  communists. 

And  then  the  following  question  was  asked  him 
(p.  39;  Vol.  F.): 

"  Q.  Now,  considering  all  prejudice  and  all  opinions- 
"  that  you  now  have,  is  there  anything  which,  if  the  testi- 
"  mony  was  equally  balanced,  would  require  you  to- 
"  decide  one  way  or  the  other,  in  accordance  with  your 
"opinion  or  your  prejudice?  A.  If  the  testimotiy  zvas 
"  equally  balanced,  I  should  hold  my  present  opinion,  sir. 
"  Q.  That  is,  you  would  throw  your  opinion  upon  the 
"  scale,  which  would  give  it  a  greater  weight,  your  pres- 
"  ent  opinion  would  turn  the  balance  of  the  scale  in  favor 
"  of  your  present  opinion?  That  is,  assuming  that  your 
"  present  opinion  is  that  j'ou  believe  the  defendants 
"  guilty — or  some  of  them — now  suppose,  if  the  testimo- 
"  mony  were  equally  balanced,  your  present  opinion  would 
"  warrant  you  in  convicting  them,  you  believe,  assuming 
"  your  present  opinion  is  that  they  are  guilty?  A.  / 
"  presume  it  zvould.  Q.  Well,  you  believe  it  would — 
"  that  is  your  present  beHef,  is  it?     A      TesP 

Thereupon  counsel  for  defense  challenged  Mr.  Walker 
for  cause. 

Upon  examination  of  Mr.  Grinnell,  Mr.  Walker  an- 
swered the  so-called  statutory  questions  satisfactorily,  and 
thereupon  the  court  interrogated  him  as  follows: 

"  The  Court:  Mr.  Walker,  I  suppose  you  know  that 
"  the  law  is  that  no  man  is  to  be  convicted  of  any  crime 
"  unless  the  evidence  upon  his  trial,  unless  that  evidence 
"  proves  that  he  is  guilty  beyond  a  reasonable  doubt? 
"  A.  Yes,  sir.  Q.  Now,  this  confusion  about  opinions 
"  and   verdicts  I   want  to  clear  up  if  I  can.     I  suppose 


359 

"  that  you  know  that  no  man  is  to  be  tried  upon  prior 
"  impression  or  prior  opinion  of  the  jurors  that  are  called 
«  into  the  case?  A.  Yes,  sir.  Q.  But  only  upon  the 
"  evidence.  That  you  are  familiar  with,  of  course.  Now, 
"  do  you  believe  that  you  can  fairly  and  impartially  ren- 
"  der  a  verdict  without  any  regard  to  rumor  and  what 
"  you  may  have  in  your  mind  in  the  way  of  suspicion  and 
"  impression,  etc.,  but  do  you  believe  that  you  can  fairlj^ 
"  and  impartially  render  a  verdict  in  accordance  with  the 
"  law  and  evidence  in  the  case?  A.  I  shall  try  to  do  it, 
"  sir."  The  Court,  interrupting:  "  But  do  you  believe  that 
"  you  can  sit  here  and  fairly  and  impartially  make  up 
"  your  mind  from  the  evidence  whether  that  evidence 
"  proves  that  they  are  guilty  beyond  a  reasonable  doubt  or 
"  not?  A.  I  think  I  could,  but  I  should  feel  that  I  was 
"  a  little  handicapped  in  my  judgment,  sir."  The  Court: 
"  Well.,  that  is  a  siifficient  qualification  for  a  juror  in  the 
"  case.  Of  course,  the  more  a  man  feels  that  he  is  handi- 
"  capped,  the  more  he  will  be  guarded  against  it." 

Thereupon  counsel  for  defendants  excepted  to  the  re- 
mark of  the  court,  stating  that  the  court's  position  did 
not  correspond  with  observation  or  judgment,  and  ob- 
jected to  such  remark  being  made  as  shown  by  the  rec- 
ord in  the  presence  of  a  large  number  of  talesmen  wlio 
were  in  attendance,  awaiting  examination. 

The  court  overruled  the  challenge  for  cause,  to  which 
the  defendants  excepted,  and  thereupon  peremptorily  chal- 
lenged JMr.  Walker. 

We  beg  leave  to  state  that  not  only  is  the  remark  given 
above  contrary  to  experience,  but  to  all  the  authorities. 
According  to  the  remark  of  the  court,  the  stronger  the 
opinion  of  the  juror  against  the  defendant,  and  the  more 
bias  and  prejudice  he  has,  the  better  juryman  he  will 
make,  because,  having  this  hostile  opinion   and  this  bias 


360 

and  prejudice,  he  will  be  conscious  of  it,  and  will  isolate 
it  from  himself,  and  that  will  leave  his  mind  to  act  on  the 
evidence  alone.  The  common  experience  is  that  a  pre- 
viously formed  opinion  or  prejudice  is  like  the  sand-drift 
that  permeates  and  mixes  with  everything,  or,  like  green 
spectacles,  that  colors  everything  within  the  vision.  The  au- 
thorities all  agree  the  defendant  is  not  bound  to  take  such  a 
juryman,or,as  Chief  Justice  Marshall  says  in  the  Burr  case, 
"  thelaw  will  not  trust  him.^''  Judge  Gary  seems  to  think  the 
provision  of  the  constitution  is  all  wrong.  This  provision 
should  have  been  that  the  defendant  should  be  entitled  to  a 
juryman  '■'■handicapped^''  by  previous  opinions  and  preju- 
dices, and  the  more  he  is  handicapped  the  better  the  jury- 
man will  be. 

W.  D.  Allen  (i  A.,  61;  Vol.  C,  125-130)  stated 
that  he  had  heard  and  read  about  the  Haymarket  difficulty, 
and  from  what  he  had  so  read  and  heard  had  formed  an 
opinion  as  to  the  guilt  of  some  or  all  the  defendants,  which 
opinion  he  still  had,  and  which  he  had  frequently  expressed 
to  others.     Then  came  these  questions  and  answers: 

"  Q.  I  will  ask  you  whether  what  you  have  formed 
"  from  what  you  read  and  heard  is  a  slight  impression,  or 
"  an  opinion,  or  perhaps  a  conviction?  A.  It  is  a  de- 
"  cided  conviction.  Q.  You  have  made  up  your  mind 
"  as  to  whether  these  men  are  guilty  or  innocent?  A. 
"  Yes.  Q.  It  would  be  difficult  to  change  that  convic- 
"  tion, or  impossible,  perhaps?  A.  Yes.  Q.  It  would 
"  be  impossible  to  change  your  conviction?  A.  It  would 
"  be  hard  to  change  my  conviction."     (Page  126.) 

Thereupon  Mr.  Allen  was  challenged  for  cause. 
Whereupon  Mr.  Grinnell  asked  him  if  he  could  determine 
the  guilt  or  innocence  of  the  defendants,  regardless  of  his 
opinion,  and  he  stated  he  could;  and  thereupon  the  court 
proceeded  to  interrogate  him,  asking  whether  he  had  any 


personal  acquaintance  with  any  of  llie  defendants,  or  had 
ever  seen  them  before,  which  he  replied  to  in  the  nega- 
tive.    Then  the  following  occurred: 

"  Q.  Have  you  any  feeling  with  regard  to  them  ex- 
"  cept  such  as  grows  out  of  what  you  have  read  or  heard 
"  in  connection  with  the  matter  which  was  referred  to  as 
"  the  Haymarket  difficulty?  A.  No,  sir.  Q.  If  you 
"  should  be  impaneled  here  as  a  juror,  do  you  believe  that 
"  3'ou  would  endeavor  to  get  at  the  real  truth  by  the  evi- 
"  dence  without  regard  to  any  former  opinion  that  you 
^'  have  had,  or  any  opinion  that  you  have  now,  or  any- 
-"  thing  that  you  have  read  or  heard?  A.  I  should,  yes. 
•"  Q.  And  in  trying  the  case,  you  believe  that  you  could 
"  fairly  and  impartially  try  it  onl}-  upon  the  evidence  here 
-"  in  court,  with  the  instructions  of  the  court?  A.  I  do. 
-"  Q.  I  suppose  you  are  familiar  with  the  rule  of  law, 
"  that  if  there  is  no  evidence  which  entirely  satisfies  the 
-"  jury  beyond  a  reasonable  doubt  of  the  guilt  of  the  person 
■"  charged  with  the  oflense,  he  must  be  acquited — you 
"  are  familiar  with  that?  A.  Yes.  Q.  Do  you  believe 
"  that  you  will  fairly  and  impartially  apply  that  rule  in 
■"  this  case,  and  unless  the  evidence  which  is  here  heard  is 
"  of  that  character,  that  you  can  acquit  these  defendants? 
•"  A.  Yes."  The  Court:  "  It  don't  make  much  differ- 
-"  ence  what  a  man  calls  his  own  state  of  mind — whether 
-"  he  calls  it  an  impression,  an  opinion  or  a  conviction. 
-"  The  thing  is  the  same — any  bias  or  prejudice  or  state 
-"  of  mind  which  will  prevent  him  from  trying  the  case 
■"  upon  the  evidence." 

Thereupon  continued  discussion  between  counsel  and 
court  as  to  the  attitude  of  Mr.  Allen  as  disclosed  by  his 
answers,  at  the  end  of  which  the  court  overruled  the 
-challenge  for  cause,  to  which  defendants  excepted,  and 
thereupon  challenged  Mr.  Allen  peremptorily. 


362 

Perhaps  the  attitude  of  Judge  Gary  with  reference  to 
the  scope  to  be  allowed  defendants  in  their  examination  of 
proposed  jurors  cannot  be  better  illustrated  than  by  call- 
ing attention  to  his  action  in  reference  to  one  particular 
question  which  was  formulated  carefully  and  was  asked 
of  a  great  number  of  the  proposed  jurors,  but  which 
Judge  Gary  in  every  instance  refused  to  allow  the  pro- 
posed jurors  to  answer,  although  the  representatives  of  the 
state  formally  withdrew  all  objection  to  the  question  in 
open  cour".  The  question  asked  appears  in  i  A.,  39, 
as  follows: 

"  Suppose  it  should  appear  in  evidence  that  the  meet- 
"ing  held  at  the  Haymarket  square  was  a  meeting  called 
"  by  socialists  or  anarchists,  and  was  attended  by  them 
"  and  others;  suppose  that  it  should  further  appear  that 
"  the  bomb  which  is  alleged  to  have  produced  the  death 
"  of  Mr.  Degan  was  thrown  by  some  one  in  sympathy 
"with  the  socialists  or  anarchists;  now,  I  will  ask  you, 
"  provided  it  was  not  established  beyond  all  reasonable 
"  doubt  that  these  defendants  actualh'^  threw  the  bomb, 
"  or  that  they  aided,  participated  in  or  advised  the  com- 
"  mission  of  that  wrong,  would  the  fact  that  they  were 
"  socialists  or  communists  have  any  influence  upon  your 
"  mind  in  determining  their  innocence?"  Mr.  Grinnell, 
the  state's  attorney,  then  said:  "  I  zviU  not  object  to  that 
"  question."  But  the  question  was  refused  by  the  court, 
not  only  in  that  instance,  but  in  every  other  case  where 
it  was  propounded,  to  which  defendants  excepted  in  every 
instance. 

This  course  of  action  upon  the  part  of  Judge  Gary 
appears  at  page  148,  Vol.  A.;  i  A.,  40. 

Mr.  Crowley  was  under  examination,  and  stated  that 
he  wonld  not  give  the  same  effect  to  the  testimony  of  an 
anarchist  upon  the  stand,  or   a    communist,  that  he  would 


363 

to  any  other  unimpeached  testimony.  He  was  challenged' 
for  cause,  the  challenge  was  overruled,  to  which  defend- 
ants excepted,  and  then  asked  the  following  question,  by 
defendants'  counsel: 

"  Q.  I  will  ask  you  whether  your  prejudice  against 
«'  communists  and  anarchists  is  such,  that  if  they  should 
"  testify  as  witnesses  you  would  not  give  to  their  evidence 
"  the  weight  which  it  was  entitled  to,  had  they  not  been 
"  anarchists  or  communists?"  Mr.  Grinnell  stated:  "  We 
"  don't  make  any  objection."  But  the  court  held  the 
question  to  be  improper,  and  refused  to  allow  it  to  be  an- 
swered. 

Thereupon  the  defendants'  counsel  asked  the  following: 
"  You  have  answered  that  you  are  prejudiced  against 
"  socialists,  communists  and  anarchists.  Now,  upon  the 
"  trial  of  this  cause,  if  it  should  be  established  by  compe- 
"  tent  evidence  that  a  meeting  of  socialists  and  anarch- 
"ists,  communists  and  others,  was  held  at  the  Haymarket 
"  square,  in  this  city,  on  May  4th,  and  that  a  bomb  was 
"  maliciously  thrown  by  some  one  in  sympathy  with  such, 
"meeting,  and  in  sympathy  with  the  principles  advocated 
"by  socialists,  communists  and  anarchists,  and  that  by 
"reason  thereof  Mathias  J.  Degan  was  killed;  but  if  the 
"  evidence  introduced  upon  the  trial  fails  to  show  beyond  a 
"  reasonable  doubt  that  such  bomb  was  thrown  by  these- 
"  defendants,  or  any  one  of  them,  and  that  they,  nor  any 
"one  of  them,  neither  assisted,  aided,  abetted,  advised  or 
"counseled  the  throwing  of  the  bomb,  would  your  preju- 
"  dice  against  socialists,  communists  and  anarchists  pre- 
"  vent  you  from  rendering  an  impartial  verdict  and  ac- 
"  quitting  the  defendants,  or  are  you  now  so  prejudiced 
"  against  the  classes  to  which  I  have  referred  that  you 
"cannot  act  impartialy  and  fairly  as  a  juror  in  this  case 
"under  the  facts  assumed  in  the  question?" 


364 

This  question  was  refused  by  the  court,  to  which  the 
defendants  excepted,  and  then  asked: 

"  Q.  I  will  ask  you  whether,  if  the  defendants  should 
*'  testify  as  witnesses  in  their  own  behalf  in  this  trial, 
•'•  and  it  should  appear  that  they  were  communists,  social- 
■"  ists  or  anarchists,  that  you  would  give  credence  to  their 
"  testimonj'?  " 

The  question  was  objected  to,  and  the  objection  sus- 
tained, and  defendants  excepted,  and  then  asked: 

"  Q.  Would  you  consider  their  testimony,  under  these 
•"  circumstances,  the  same  as  the  testimony  of  any  other 
"  witness?  " 

Which  question  was  objected  to,  and  objection  sustained, 
and  defendants  excepted,  and  then  asked: 

"  If  the  testimony  was  equally  divided  upon  the  trial  of 
"this  case,  would  you  find  against  the  defendants  or  in 
■"favor  of  the  defendants,  because  of  their  being commun- 
•"  ists,  socialists  or  anarchists?" 

Which  question  the  court,  on  its  own  motion,  refused, 
to  which  defendants  excepted. 

Mr.  Crowley  was  thereupon  peremptorily  challenged 
by  defendants. 

James  H.  Cole  was  one  of  the  jurors  who  tried  the 
case.  He  was  asked  the  same  questions  as  Mr.  Crowley. 
The  rulings  of  the  court  were  the  same  as  in  the  case  of 
Crowley,  and  the  exceptions  the  same,  the  court  refusing 
to  allow  any  of  said  questions  to  be  answered.  In  addi- 
tion to  this,  it  may  be  mentioned  that  Mr.  Cole  admitted 
that  he  had  a  prejudice  against  socialists,  communists  and 
anarchists,     (i  A.,  41;  Vol.  A.,  172  to  181.) 

In  Mr.  Shedd's  examination,  heretofore  referred  to 
(I  A.,  46;  Vol.  A.,  396  to  398),  defendants'  counsel 
examining,  the  following  occurred: 

'■  Q.     Have  you  anj-  prejudice  against  the  class  known 


365 

"as  socialists,  communists  or  anarchists?  A.  I  have; 
"  yes. 

"  Q.     A  decided  prejudice   against  them?     A.     It  is. 

"  Q.  I  will  ask  you  whether  that  prejudice  would 
"  prevent  your  rendering  an  impartial  verdict  in  this  case, 
"  provided  it  was  conceded  or  proved  that  the  defendants 
"  belonged  to  this  class?     A.     It  would;  yes,  sir." 

The  juror  was  thereupon  challenged  for  cause.  Chal- 
lenge overruled,  and  e.xception. 

The  following  discussion  then  occurred: 

"  The  Court:  I  know,  or  the  court  judicially  knows,. 
"  what  are  the  objects  of  socialists,  communists  or  an- 
"  archists. 

"  Mr.  Foster:  Beg  your  pardon,  it  presumes  that  the 
"  juror  knows. 

"The  Court:  You  must  presume  that  I  know,  be- 
"  cause  it  has  been'decided  that  for  a  man  to  say  that  he 
"  was  prejudiced  against  horse-thieves  is  no  ground  to 
"  impute  to  him  any  misconduct  as  a  juror.  Now,  you 
"  must  assume  that  I  know  either  that  anarchists,  social- 
"  ists  and  communists  are  a  worthy,  a  praiseworthy  class 
"  of  people,  having  worth}^  objects,  or  else  I  can't  say 
"  that  a  prejudice  against  them  is  wrong.    I  don't  know;"^ 

Later  on,  in  the  examination  of  the  same  proposed 
juror,  this  talesman  stated,  as  we  have  before  called  at- 
tention to,  that  the  mere  fact  of  the  defendants  being 
communists  would  influence  his  opinion  as  a  juror,  and 
that  he  would  find  a  verdict  of  "  guilty  "  upon  less  evi- 
dence than  if  they  were  law-abiding  citizens. 

Thereupon  the  court  asked  this  question: 

"  Well,  that  prejudice  of  yours,  then,  is  based  upon  your 
"  understanding  that  they  are  not  law-abiding  citizens,  is 
"  it?     A.     That  is  what  it  is." 

T.    H.    DowD    (i  A.,  50;    Vol.    B,  99-104),  having 


366 

stated  that  he  was  prejudiced  against  socialists,  anarchists 
and  communists,  was  asked  if  such  prejudice  was  so 
strong  that  it  would  influence  his  verdict  if  selected  as  a 
juror.  The  court  on  his  own  motion  refused  to  allow  the 
question  to  be  answered.  To  which  defendants  ex- 
cepted. Then  he  was  asked  if  his  prejudice  was  such 
that  it  would  influence  his  verdict  should  it  be  estab- 
lished or  conceded  during  the  trial  that  the  defendants 
were  socialists,  communists  or  anarchists;  which  question 
the  court  refused  to  allow  to  be  answered,  and  the  de- 
fendants excepted.  And  then  he  was  asked  whether,  if 
it  should  appear  that  the  defendants  were  socialists,  an- 
archists or  communists,  it  would  require  less  evidence  to 
convict  or  more  evidence  to  acquit  than  if  such  fact 
should  not  appear.  Which  question  the  court  also  re- 
fused to  allow  to  be  answered.  To  which  defendants 
excepted. 

H.  F.  Chandler  (i  A.,62,  Vol.  C;  149  c/ sc§r.):  Stated 
that  he  had  heard  and  read  of  the  Haj'market  trouble, 
had  formed  an  opinion  as  to  the  guilt  or  innocence  of 
the  defendants,  which  he  still  entertained  and  had  ex- 
pressed before  coming  into  court.  That  he  believed 
what  he  heard  and  read,  but  had  not  expressed  an  opin- 
ion as  to  the  truth  of  the  accounts  received.  That  his 
■opinion  was  decided  and  his  mind  pretty  well  made  up. 
He  stated:  "  //  will  take  evidence  to  satisfy  we,"  and  that 
it  might  be  hard  to  change  his  opinion;  but  he  stated  fur- 
ther that  he  believed  he  could  determine  the  question  of 
the  guilt  or  innocence  of  the  defendants  solely  upon  the 
evidence  in  court;  admitted  he  had  a  strong  prejudice 
against  anarchists  and  communists.  He  was  asked:  "  Q. 
^'  If  it  were  proved  or  conceded  on  this  trial  that  all  the 
-"  defendants  or  some  of  them  are  socialists,  anarchists  or 
"  communists,  do  you  think  your    prejudice  would  in  any 


367 

"  way  influence  your  verdict?"  Which  question  the 
court  refused,  and  defendants  excepted. 

He  stated  that  he  was  pointed  out  to  the  deputy  sheriff 
by  his  employer  to  be  subpoenaed  as  a  juror,  and  that  he 
had  quite  frequently  expressed  his  opinion  as  to  the  guilt 
•or  innocence  of  the  defendants. 

Challenged  for  cause,  he  was  examined  by  the  court,  to 
whom  he  stated  that  he  did  not  know  the  defendants, 
bat  tJiought  he  had  some  feeling  against  t/ievi,  not  only 
based  upon  what  he  had  read  about  the  Haymarket  trouble, 
hit  on  matters  which  he  had  heard  before  that.  That  his 
opinion  was  based  alone  on  what  he  had  heard  and  read, 
and  he  believed  he  could  try  the  case  fairly  upon  the  evi- 
■dence.  That  he  had  now  an  opinion  upon  the  question 
z.%  to  whether  the  defendants  did  the  act  which  resulted 
in  the  death  of  Degan. 

Thereupon  the  court  suggested,  in  effect:  "It  don't 
"  seem  to  me  it  makes  any  difference  in  the  competency 
"  of  a  juror,  whether  he  has  simply  formed  an  opinion, 
"  or  expressed  an  opinion  which  he  has  formed.  I  don't 
"  see  how  it  makes  a  particle  of  difference  in  his  state  of 
"  mind.  Every  man  is  in  favor  of  justice  and  fair  deal- 
"  ing  as  between  other  people,  where  his  own  interests 
"  are  not  affected;  and,  as  I  have  said  before,  I  think  it 
"  is  in  the  nature  of  any  man  when  he  wants  to  find  out 
"  the  truth  of  any  transaction  that  he  will,  when  the 
"  original  sources  are  presented  to  him,  follow  them  and 
"  not  any  hearsay  that  he  has  ever  heard." 

Thereupon  the  challenge  for  cause  was  overruled  to 
which  defendants  excepted,  and  challenged  peremptorily. 

H.  L.  Anderson  (i  A.,  69;  Vol.  C,  517)  stated  that  he 
had  heard  and  read  about  the  Haymarket  affair,  and 
formed  an  opinion  as  to  the  guilt  or  innocence  of  some  of 
the  defendants;  that   he  had  frequently  talked  the  matter 


368 

over  with  other  people,  and  expressed  his  opinion  as  to 
the  guilt  or  innocence  of  the  defendants,  which  opinion  he 
still  retained,  and  which  was  based  not  only  upon  what  he 
had  read  but  what  he  heard;  that  he  was  sure  he  could 
lay  aside  his  prejudice  and  grant  a  fair  trial  upon  the  evi- 
dence. That  he  was  well  acquainted  with  sorne  of  the  po- 
lice force  who  zuere  present  at  the  Haymarket,  and  they 
had  given  him  their  views  of  the  matter  since  that  meetings 
and  told  him  what  occurred  there  in  connection  with  the 
effort  to  disperse  the  crowd.  That  some  of  them  were 
injured  by  the  explosion  of  the  bomb,  and  that  he  knew 
well  one  of  the  parties  killed  by  the  bomb.  That  he  had 
formed  an  nnqiialifisd  opinion  as  to  the  guilt  or  innocence 
of  the  defendants  which  he  regarded  as  deep-seated,  a  firm 
conviction  that  these  defendants,  or  some  or  them, 
WERE  GUILTY.  That  US  a  result  of  the  conversation  that 
he  had  zvilh  the  policemen  present  at  the  meeting,  he 
reached  his  opinion  as  to  the  guilt  or  innocence  of  some  of 
the  defendants. 

He  was  thereupon  challenged  for  cause  by  the  defend- 
ants; challenge  was  overruled;  defendants  excepted  and 
challenged  peremptorily. 

T.  E.  Keefe  (i  a.,  724;  Vol.  D,  42-61)  stated  that  he 
had  heard  of  the  Haymarket  affair,  and  from  what  he 
heard  and  read  had  formed  an  opinion  as  to  the  guilt  or 
innocence  of  the  defendants  of  the  murder  of  Degan, 
which  opinion  he  still  had,  and  which  was  a  firm  opinion; 
thought  such  opinion  would  not  influence  his  verdicts 
knew  Officer  Degan  for  several  months  before  he  was 
killed,  and  knowing  him,  what  he  had  heard  and  read 
caused  him  to  form  a  very  strong  opinion  upon  the  ques- 
tion of  the  guilt  or  innocence  of  these  defendants  or  some 
of  them,  which  he  had  expressed  to  others;  that  he  be- 
lieved what  he  had   heard   and   read,   and   expressed  liis 


3^9 

opinion  on  that  belief;  had  staled  to  others  that  he  beliei'cd 
zvhat  he  had  heard  and  read,  and  did,  in  fact,  beliez'e  the 
accounts  as  -publislied  and  repeatedly  so  stated,  and  at  the 
same  time  told  others  his  opinion. 

Challenged  for  cause,  he  staled  to  Mr.  Grinnell  that 
he  got  the  opinion  from  what  he  read,  which  he  expressed 
to  others,  but  that  he  did  not  say  to  anybody  that  he  be- 
lieved what  he  read — did  believe  it,  but  did  not  say  so; 
and  that  the  opinion  he  had  was  as  to  who  was  respon- 
sible. 

Thereupon  to  the  court  he  stated  that  he  had  never  had 
any  discussion  as  to  the  truth  of  the  reports  he  had 
heard,  but  had  expressed  his  opinion  to  others  as  to  the 
transaction  and  as  to  the  parties. 

Examined  again  by  defendants'  counsel]  he  stated  that 
he  had  expressed  his  opinion,  which  was  based  upon  what 
he  had  heard  and  read,  which  he  believed,  more  on  what 
he  had  heard  than  what  he  had  read,  and  he  had  repeated 
what  he  had  heard  to  others — tliat  he  had  slated  to  others 
that  he  believed  zvliat  he  had  heard,  but  did  not  state  that 
he  believed  what  he  had  read — stated  to  others  that  he 
believed  what  he  had  heard  and  gave  them  his  opinion  — 
that  there  is  no  mistake  about  this;  tliat  he  said  to  others 
that  he  believed  what  he  had  heard. 

The  challenge  for  cause  was  here  renewed,  when  to  the 
court  he  stated  that  he  had  heard  the  Haymarket  trasac- 
tion  talked  of,  but  never  told  anybody  that  he  believed  the 
newspapers  had  got  the  story  straight,  nor  that  he  be- 
lieved that  he  himself  had  got  it  straight  from  any  one 
who  talked  with  him. 

Thereupon  to  defendants'  counsel  he  further  stated  that 
his  opinion  was  formed  from  what  he  had  heard  largely, 
and  that  in  communicating  that  opinion  to  others  he  staled 
that  he  believed  what  he  had  heard — that  there  ivas  no  mis- 


370 

take  about  this;  that  he  told  them  his  opinion,  which  was 
based  upon  what  he  had  heard  and  read. 

Thereupon  the  challenge  for  cause  was  again  renewed, 
when  to  Mr.  Grinnell  he  stated  that  in  discussing  the 
matter  with  others  he  had  repeated  what  he  had  heard 
and  had  expressed  his  opinion,  but  did  not  state  that  he 
believed  every  word  or  any  particular  word  that  had  been 
told;  and  to  the  court  he  stated  that  he  had  never  said 
anything  as  to  whether  he  thought  those  that  he  talked 
with  got  the  story  straight. 

Finally  to  defendant's  counsel  he  again  stated  that  he 
had  heard  the  stoiy  from  several  parties  whose  narpes  he 
could  not  give,  and  had  discussed  the  matter  with  a  good 
many;  that  he  believed  what  he  had  heard,  though  he  did 
not  say  so;  and  thereupon  he  stated  further  that  in  talk- 
ing- with  others  he  told  them  that  he  did  believe  what  he  had 
heard,  but  did  not  repeat  the  substance  fully — that  he  ivas 
sure  that  he  did  tell  them  that  he  believed  what  he  had  heard, 
and  this  in  conversation  with  different  people. 

Challenge  for  cause  was  thereupon  overruled,  to  which 
the  defendant  excepted,  and  challenged  peremptorily. 

The  examination  of  M.  D.  Flavin  (i  A.,  84;  Vol.  D, 
411  to  418)  brings  out  another  point  in  the  ruling  of  the 
trial  court  as  to  the  qualification  of  jurors  not  heretofore 
suggested,  namely,  that  even  relationship  of  the  proposed 
Juror  to  one  of  the  parties  killed  by  the  Hayniarket  bomb, 
coupled  with  admitted  prejudice,  would  not,  in  the  judg- 
ment of  the  court,  disqualify.  It  needs  no  citation  of 
authority  to  show  the  absolute  error  of  this  ruling.  The 
examination  was  in  substance  as  follows: 

He  stated  that  he  had  heard  and  read  about  the  Hay- 
market  affair  and  formed  an  opinion  as  to  the  guilt  or  in- 
nocence of  the  defendants  of  the  murder  of  Degan,  which 
opinion   still   stood   pretty   strong,    which    he   still    enter- 


371 

tained  and  had  expressed  to  others.  That  one  of  the 
■officers  killed.  Officer  Flavin,  zvas  a  relative,  allhoiigh  his 
relationship  u/as  distant,  and  for  this  reason  his  feelins;  zvas 
perhaps  different  from  what  it  would  have  been,  and  occa- 
sioned a  very  strong'  opinion  as  to  the  guilt  or  innocence  of 
the  defendants,  or  some  of  them.  That  he  stated  in  dis- 
■cii'^sing  this  matter  with  others  that  he  believed  what  he  had 
heard  and  read,  not  so  much  what  he  had  read  as  what  he 
had  heard:  That  he  believed  he  expressed  the  opinion 
that  what  he  had  heard  was  a  true  narrative.  He  was 
thereupon  challenged  for  cause. 

To  Mr.  Grinnell  he  stated  that  he  read  the  accounts  of 
the  Haymarket,  but  did  not  believe  he  had  ever  told  any- 
body that  he  believed  the  story  that  he  had  heard  and 
read  was  a  true  stor\';  did  not  express  any  opinion  as  to 
the  I  ruth  of  the  details;  but  stating  he  believed  he  could 
give  a  fair  and  impartial  verdict,  challenge  for  cause  was 
overruled,  to  which  defendants  excepted  and  challenged 
peremptorily. 

Rush  Harrison  (i  A.,  106-7;  Vol.  F,  56-65)  stated 
that  he  had  been  working  for  Edson  Keith  &  Co.,  in  their 
silk  department,  for  eleven  years.  Had  read  and  heard 
of  the  Haymarket  meeting,  and  formed  an  opinion  touch- 
ing the  guilt  or  innocence  of  the  accused,  or  some  of  them, 
of  the  murder,  which  he  had  expressed  to  others,  and 
there  had  been  nothing  to  change  it.  The  examination 
given  in  the  abstract  then  proceeds  as  follows: 

"  It  would  ha've  considerable  weight  zvith  me,  if  selected 
"  as  a  juror.  //  is  pretty  deeply  rooted,  the  opinion  is,  and 
"  //  zuould  take  a  large  preponderance  of  evidence  to  remove 
"  //.  Think  I  could  listen  to  the  testimony  and  render  a 
^'  verdict  upon  that  alone,  uninfluenced  by  my  present 
"  opinion.  Am  prejudiced  against  socialists,  communists 
"  and  anarchists.     I  still  think  it  would  take  a  preponder- 


372 

<'  ance  of  evidence  to  remove  my  present  opinion.  I  should 
"  naturally  take  the  law  from  the  court  and  the  evidence 
"  from  the  witnesses.  /  should  give  the  dejendants  the 
"  benefit  of  a  reasonabte  doubt,  if  the  evidence  zvere  equally 
"  balanced,  but  to  some  extent  1  should  be  governed  by  my 
"  present  opinion.  My  opinion  is  based  more  upon  what 
"  I  have  read  than  what  I  have  heard.  '■It  would  require- 
"  the  preponderance  of  evidence  to  remove  the  opinion  I  nozir 
"  possess.  I  feel  like  every  other  good  citizen  does  feci,  a 
'■'■  Jeeling  that  these  men  are  guilty;  we  don't  know 
"  which.  We  have  formed  this  opinion  by  general  re- 
"  ports  and  the  newspapers.  Now,  with  that  feeling,  it 
"  would  take  sovte  very  positive  evidence  to  make  me  think 
"  these  men  were  not  guilty  if  I  should  acquit  them;  that 
"  is  what  I  mean.'  I  should  act  entirely  upon  the  testi- 
"  mony.  I  would  do  so  as  near  as  the  main  evidence 
"  would  permit  me  to  do.  Probably  I  should  take  the 
"  testimony  alone.  '  Q.  But  you  say  it  would  take  posi- 
"  live  evidence  of  their  innocence  before  you  could  consent 
"  to  return  them  not  guilty?  A.  Tes.  I  should  want 
"  some  strong  evidence.  Q.  Well,  if  that  strong  evidence 
"  of  their  innocence  was  not  introduced,  then  you  would 
"  want  to  convict  them,  of  course?     A.      Certainly.'' 

"  Uon't  know  whether,  if  the  testimony  was  evenly  bal- 
"  lanced,  my  opinion    would  turn  the  scale,  but  I   think  it 
"  would.     I  think  if    the  testimony  was  evenly  balanced 
"  my  present  opinion  would  convict  them." 
(Challenged  for  cause  by  defendants.) 

To  Mr.  Grinnell:  "  If  I  did  not  believe,  beyond  a  rea- 
"  sonable  doubt,  these  defendants,  or  some  of  them,  were 
"  guilt}-,  I  would  be  willing  to  acquit  them  upon  the  proof 
"  presented  in  court.  I  would  give  the  defendants  the 
"  benefit  of  the  doubt. 

"If  the  testimony  was  equally  balanced,  I  think  my  prcscut 


373 

■*'  opinion  would  convict  the  defendants.  I  said  so,  and  I 
"  still  think  so." 

To  the  Court:  "  I  understand  that  a  defendant  must 
"  be  proved  guilty  by  the  evidence  beyond  a  reasonable 
"  doubt  or  he  is  entitled  to  be  acquitted.  I  should  give 
'•  the  benefit  of  the  doubt  to  the  prisoners,  unless  they 
"  were  proved  to  be  guilty  by  the  evidence." 

The  challenge  for  cause  by  the  defendants  to  Mr.  Har- 
rison was  thereupon  overruled,  to  which  the  defendants 
-excepted,  and  challenged  peremptorily. 

We  submit  that  if  Mr.  Harrison,  as  shown  by  this  ex- 
amination, was  a  fair  and  impartial  juror  within  the  con- 
templation of  our  constitution  and  laws,  then  there  is  no 
such  thing  as  a  prejudiced  juror.  Here  was  a  man  who 
stated  positively  that  he  shared  in  the  general  belief  that 
the  defendants,  or  some  of  them,  were  guilty;  that  this 
-opinion  of  his  v^^as  deep-rooted,  and  that  "  it  would  take 
"a  lar^e  -preponderance  of  the  evidence  to  remove"; 
*'■  that  it  would  take  some  pretty  positive  evidence  to  make 
"  me  think  these  men  were  not  guilty,  if  /should  acquit 
"  them."  That  if  the  testimony  was  evenly  balanced  the 
opinion  he  entertained  at  the  time  would  convict  the  de- 
fendants. Even  to  the  state's  representative,  upon 
•cross-examination,  he  repeated  that,  if  the  testimony  was 
■equally  balanced,  his  present  opinion  would,  in  his  judg- 
ment, convict  the  defendants.  While  to  the  court,  upon 
further  interrogation,  stating  that  he  recognized  that  it 
-would  be  his  duty  to  acquit,  unless  the  evidence  convicted 
be3'ond  a  reasonable  doubt,  he  would  only  say  that  he 
would  give  the  benefit  of  such  doubt  to  the  prisoners, 
-"  unless  they  were  proved  to  be  guilty  by  the  evidence." 
Not,  observe,  by  a  clear  preponderance  of  the  evidence, 
but  by  such  amount  of  evidence  as  he  might  deem  neces- 
.sary  to  satisfy  the  opinion  that  he  then  held. 


374 

We  repeat  that  this  juror  was  an  incompetent  juror^ 
and  if  Judge  Gary's  ruling  upon  his  examination  \v as- 
correct,  then  we  have  studied  the  constitution  and  the  law 
to  little  purpose. 

LeRoy  Hannah  (i  A.,  n8;  Vol.G,  165-171)  stated 
that  he  had  heard  and  read  of  the  Haymarket  meeting;^, 
that  he  had  a  prejudice  against  socialists,  communists 
and  anarchists;  that  if  he  zvere  a  juror  in  this  case  his 
verdict  might  be  prejudiced  by  his  present  bias  and  opinion^ 
and  that  he  believed  that  he  could  not  act  upon  the 
proof  presented  in  court  alone,  uninfluenced  thereby. 

He  was  thereupon  challenged  for  cause  by  the  defend- 
ants. 

To  the  state's  attorney  he  said  that  he  would  try  to 
determine  the  question  of  the  guilt  or  innocence  of  the 
defendants,  if  taken  as  a  juror,  without  reference  to  what 
he  had  heard  or  read,  and  believed  he  could  do  so.  To- 
the  court  he  stated  that  he  had  no  personal  acquaintance 
with  the  defendants,  and  the  only  opinion  he  had  was  from 
what  he  had  read  and  heard.  That  he  had  talked  zvith  a 
policeman  who  was  present  at  the  Haytnarket,  but  that  the 
names  of  the  defendants  were  not  mentioned,  and  that  if 
selected  as  a  juror  he  thought  he  could  be  governed  hy 
the  evidence  alone.  The  challenge  for  cause  was  there- 
upon overruled,  and  he  was  further  examined  by  defend- 
ant's counsel. 

He  stated  tlial  he  had  talked  icitli  a  policeman  icho 
was  present  at  the  Haymarket,  and  zuho  described  the 
occui'rcnce  there,  the  throwing;  of  the  bomb,  etc.,  bnt  did 
not  mention  the  names  of  the  pai'ticidar  persons  pres- 
ent; that  lie  had  lieard  the  names  oj  Spies,  Parsons 
and  Fielden,  and  zuhatever  opinion  he  had  tipon  the 
matter  had  reference  to  parties  bearing  those  names; 
and  the  prejudice  which  he  had  was  against  parties 


375 

bearing  these  names,  and  the  principles  they  advocated. 
That  it  was  so  strong  that  it  would  probably  influence 
him  in  considering  the  testimony.  That  he  was  prej- 
udiced against  the  principles  which  they  advocated 
and  against  theyn,  and  that  he  felt  that  this  prejudice 
might  ififluence  his  verdict:  and  he  said,  "  I  don't  know 
"  but  we  deceive  ourselves  sometimes,  when  we  say  we 
"  can  do  so  and  so.  My  prejudice  might  bias  my  ver- 
"  diet." 

The  challenge  for  cause,  being  thereupon  renewed,  was 
fully  argued,  overruled,  and  exception;  and  the  defendants 
thereupon  challenged  peremptorily. 

We  think  we  may  be  justified  here  in  citing  one  or  two 
illustrations,  for  the  purpose  of  showing,  by  the  questions 
asked  and  the  expressions  made  use  of  by  Judge  Gary, 
the  extent  to  which  he  went  in  this  matter  of  the  qualifi- 
cation for  jury  service,  despite  the  matters  upon  which  we 
relied  as  evidencing  disquahfication;  and  also  further 
showing  the  attitude  taken  by  the  court  in  the  course  of 
these  jury  examinations. 

In  the  course  of  the  examination  of  J.  R.  Adams  (i  A., 
75;  Vol.  D,  84-89),  after  he  had  been  challenged  for 
cause,  this  occurred: 

The  Court:  "  Q.  Do  you  believe  that  after  you 
"  have  heard  all  the  evidence  that  can  be  presented,  or 
"  that  shall  be  presented  on  either  side — examination  and 
"  cross-examination — that  your  conclusions  then  as  to 
"  what  is  the  truth  will  be  at  all  affected  by  what  people 
"  have  said  or  written  about  it  before  you  heard  any  tes- 
"  timony?  Do  you  believe  that  yoUr  conclusions  as  to 
«  what  that  evidence  proved  or  failed  to  prove  will  be  at 
''  all  aftected  by  what  anybody  had  ever  said  or  written 
"  about  that  matter  before?     A.     I  believe  it  would. 

"  The  Court:     It  is  incomprehensible  to  me." 


376 

The  challenfje  was,  of  course,  allowed  on  this  answer, 
but  the  remark  was  excepted  to  by  defendants'  counsel, 
the  remark  being  made  in  the  presence  of  other  jurors. 

In  connection  with  the  examination  of  B.  L.  Ames 
(i  A.,  95;  Vol.  E,  400-408),  after  he  had  been  chal- 
lenged for  cause  on  his  answers  made  to  defendants' 
counsel,  the  court  took  him  in  hand  and  proceeded  to  ex- 
amine him.  I'his  appears:  He  stated  to  the  court  that 
he  did  not  believe^  evcrvthing  considered,  that  he  coidd  sit 
US  (I  juror,  listen  to  the  evidence,  and  from  that  alone  make 
up  his  mind  as  to  the  guilt  or  innocence  of  the  defendants ; 
that  he  did  not  know  the  defendants,  but  had  frequently 
been  with  the  police,  and  didn't  think  he  would  listen  to 
the  evidence  presented,  and  make  up  his  mind  from  that 
alone  as  to  whether  it  proved  the  defendants  guilty  be- 
yond a  reasonable  doubt.  Thereupon  the  following  ex- 
amination occurred: 

"The  Court:  Q.  Why  not?  What  is  to  prevent 
"your  listening  to  the  evidence  and  acting  only  upon  that? 
"  Why  can't  you  listen  to  the  evidence  and  make  up  your 
"  mind  on  that?  " 

(Exception  by  defendants  to  said  question.) 

"  A.  I  can,  I  suppose,  make  up  ni}-  mind,  but  I  may 
"  be  prejudiced  just  the  same.  Q.  Can  you  make  up 
"  your  mind  whether  the  evidence  proves  bej-ond  a  rea- 
"  sonable  doubt  whether  they  are  guilty  or  does  not 
"  prove  it?  A.  Yes,  I  could  come  to  a  conclusion.  Q. 
"  Cnn't  3-ou  do  that  impartially?  The  question  in  this 
"  case  for  a  juror  is.  not  what  he  may  think  will  be  the 
"  effect  upon  his  mind  as  to  his  private  impressions, 
"  suspicions  or  notions,  but  what  effect  the  state  of  his  mind 
"  will  have  on  his  verdict.  Will  your  verdict  be  influenced 
"  by  anything  other  than  the  evidence  in  the  case  and  the  in- 
"  struction  of  the  court?     A.     I  am  afraid    it    would,  for 


377 

■"  certain  reasons.  Q.  You  don't  lielieve  that  you  could 
"  fairly  and  impartially  try  the  case  and  render  a  verdict 
"  on  the  law  and  evidence?     A.     I  don't  think  I  could." 

This  challenge  also  was  allowed;  but  the  questions  of 
the  court,  and  the  manner  of  their  putting  to  the  pro- 
posed juror,  illustrate  the  attitude  of  the  court  upon 
these  questions,  and  the  manner  in  which  proposed  jurors 
were  led  or  urged  to  give  answers  that  would,  in  the 
view  of  the  presidmg  judge,  establish  their  competency. 

Still  another  illustration  we  select  from  the  many 
abounding  in  the  record,  as  afforded  in  connection  with 
the  examination  of  H.  D.  Bogardus  (i  A.,  102-104). 
For  convenience  we  shall  present  this  examination  pre- 
cisely as  it  stands  in  the  abstract,  as  follows,  to  wit: 

H.  D.  Bogardus  (i  A.),  flour  and  fruit  merchant,  exam- 
ined, stated:  Have  heard  and  read  of  the  Hay  market 
meeting;  and  from  what  I  have  read  and  heard,  have 
formed  an  opinion  as  to  the  guilt  or  innocence  of  the  de- 
fendants of  the  crime  now  charged,  which  opinion  I  have 
•exjiressed  to  others,  and  still  entertain;  it  certainly  v^'ould 
influence  my  verdict  if  selected  as  a  juror;  I  could  not 
act  independent  of  the  opinion;  it  would  "require  very 
■"  strong  proof  to  overcome  my  opinion.  I  would  be  in- 
"  fluenced  by  it,  of  course,"  and  I  would  not  render  my 
verdict  upon  the  testimony  alone,  fairly  and  impartially. 
(Challenged  for  cause.) 

To  Mr.  Grinnell:  I  have  talked  with  some  police- 
men about  the  Haymarket  affair,  but  whether  they  were 
there  or  not,  I  do  not  know.  I  have' heard  no  testimony 
upon  the  matter.  I  would  be  influenced  as  a  juror  by  my 
■prejudices  and  opinions  against  the  defendants;  "  it  would 
■"  require  very  strong  proof  to  overcome  it."  I  don't  be- 
lieve I  could  give  them  a  fair  trial  upon  the  proof,  for  it 
\vouId  require  very  strong  proof  to   overcome  my  preju- 


378 

dices;  "  1  hardly  think,  that  you  could  bring  proof  enough 
"  to  change  my  opinion."  If  accepted  on  the  jury,  I 
would  try  to  do  my  duty  according  to  the  evidence,  and 
might  do  so;  think  I  could  do  my  duty,  "but  it  would  re- 
»  quire  pretty  strong  evidence  to  overcome  my  prejudice."" 
Would  not  convict  without  some  evidence.  If  taken  a& 
a  juror  in  this  case,  I  think  I  could  "  determine  the  guilt 
"  or  innocence  of  the  defendants  upon  the  proof  produced 
"  alone,  *  *  *  but  being  prejudiced,  it  would  take 
"  very  strong  evidence  to  overcome  my  prejudice." 

To  the  Court:  I  know  the  law  as  to  defendants  not 
being  convicted  except  upon  evidence  on  the  trial,  and  I 
think  I  might  fairly  and  impartially  determine  whether  the 
evidence  proved  that  they  are  guilty  beyond  a  reasonable 
doubt,  "  but  it  would  require  prett}'  strong  proof."  I  can 
fairly  and  impartially  render  a  verdict  in  this  case  in  ac- 
cordance with  the  law  and  the  evidence,  I  think. 

(Challenge  for  cause  overruled,  and  ex'ception.) 

To  Defendants'  Counsel:  "I  saj'  it  would  require 
"pretty  strong  testimon}'  to  overcome  my  opinion  at 
"  the  present  time."  Still  I  think  I  could  act  independent 
of  my  opinion.  I  would  start  with  an  opinion,  how- 
ever, and  "  I  think  that  the  preponderance  of  proof 
"  would  have  to  be  against  my  opinion  strong."  I  think 
the  defendants  are  responsible  for  what  occurred  at  the 
Haymarket  meeting.  The  preponderance  of  evidence 
would  have  to  be  in  favor  of  the  defendants'  innocence 
with  me. 

(Challenge  for  cause  renewed.) 

"The  Court:  The  question  is,  what  will  the  verdict 
"be?  The  statute  says  that  if  a  man  saj's  that  he  be- 
"  lieves  that  he  can  fairly  and  impartially  render  a  verdict 
"in  accordance  with  the  law  and  evidence,  that  then  the 
"formation  of  opinions  from   rumor   or    newspaper  slate- 


379 

"  ment  is  not  a  ground  of  challenge;  of  course,  leaving  it 
"  to  the  judgment  of  the  tryer,  whether  that  belief  of  his 
"  is  well  founded  or  not.  But  I  have  expressed  my  opin- 
"  ion  upon  that  part  of  the  case  here,  so  that  it  is  not 
"necessary  to  repeat  it.  Every  fairly  intelligent  and 
"  honest  man,  when  he  comes  to  investigate  the  question 
"  originally  for  himself  upon  authentic  sources  of  infor- 
"  mation,  will,  in  fact,  make  his  opinion  from  the  authen- 
"  tic  sources  instead  of  the  hearsays  that  he  had  before." 
(Exception  to  the  ruling  of  the  court.) 

Upon  further  examination  of  this  talesman,  he  finally 
stated  to  the  court  directly  that  he  would  find  the  .de- 
fendants guilty  unless  the  evidence  was  very  strong  and 
clear,  and  that,  if  evenly  balanced,  his  prejudice  would 
condemn  them  (page  26)  ;  and  thereupon  the  juror  was 
finally  discharged  from  the  panel  and  the  challenge  for 
cause  allowed. 

We  could  go  on  through  the  eight  volumes  of  the 
record  containing  the  jury  examination,  and  cite  hundreds 
of  illustrations  of  these  rulings,  but  we  do  not  feel  that  we 
would  be  justified  in  so  far  trespassing  upon  your  Honors' 
time  and  patience.  We  have  selected  the  cases  above 
specially  referred  to  simply  as  examples  running  alt 
through  the  case,  which  illustrate  the  positions  assumed 
by  Judge  Gary,  and  which  seem  to  us  to  demonstrate  the 
absolutely  fatal  error  which  pervaded  his  rulings,  and 
which  vitiated  the  construction  which  he  atter.}pted  to- 
give  to  the  statute  of  March  12,  1S74:  a  construction 
which,  as  above  shown,  disregarded  the  omission  from 
the  statute  of  any  suggestion  indicating  a  design  to  re- 
move the  disqualification  from  a  juror  who  had  expressed 
his  opinion,  and  had  committed  himself  to  its  advocacy, 
disregarding  wholly  the  long  line  of  judical  decisions,  to 
which   there  had  never  been  any  notable  exception,  prior 


38o 

to  the  adoption  of  our  constitution  of  1870.  Tliat  while 
the  formation  of  an  opinion  or  impression  based  upon 
newspaper  statements  or  rumor,  and  which  was  slight  in 
its  character,  does  not  necessarily  disqualif}'  a  juror  other- 
wise apparenll}'  candid,  fair  and  impartial,  yet  the  con- 
fession of  a  fixed  or  decided  opinion,  or  a  decided  convic- 
tion, no  matter  upon  what  sources  of  information  based, 
was  alwajj^s  held  to  disqualif}-.  The  fixed  belief  in  the 
truth  of  the  information  is  material,  as  bearing  upon  the 
character  of  the  opinion  as  to  defendant's  guilt  or  inno- 
cence, and  showing  that  the  opinion  is  not  hypothetical, 
but  deliberate,  based  on  what  is  deemed  credible  informa- 
tion, and  therefore  a  disqualifying  bias,  prejudice  or 
opinion. 

It  was  under  such  rulings,  announced  at  the  outset  of 
the  trial,  as  appears  from  the  examinations  transcribed  in 
volume  I  of  the  abstract,  that  the  defendants  were  com- 
pelled to  select  the  jurors.  Under  such  rulings  the  de- 
fendants proceeded  to  secure  a  jury  as  best  they  could. 
It  was  our  dut\-,  in  view  of  the  responsibilities  devolving 
upon  us  in  the  defense  of  eight  lives,  to  select  the  least 
objectionable,  out  of  those  presented  for  examination, 
whom  we  could  obtain  under  the  rulings  fixed  by  the 
court,  and  to  which  we  were  compelled  to  submit. 


IV.     THE  TWELVE   WHO  TRIED  THE   CASE. 

As  a  matter  of  fact  the  record  discloses  concerning  the 
twelve  jurors  zuho  tried  the  case,  the  following: 

Juror  Cole.  We  have  already  referred  to  this  jury- 
man's examination  above,  in  connection  with  which  was 
disclosed  his  prejudice  against  socialists,  anarchists  and 
communists  as  a  class,  and    the    refusal  of    the    court  to 


38i 

allow  us  to  interrogate  him  as  to  whether  that  prejudice 
would  influence  his  verdict,  or  the  weight  he  would  give 
to  the  testimony  of  the  defendants  if  they  should  be 
sworn,  and  to  their  witnesses,  in  his  determination  of  the 
cause. 

Mr.  James  H.  Brayton,  one  of  the  twelve,  said  that 
he  had  formed  an  opinion  as  to  the  nature  and  character 
of  the  crime  perpetrated  at  the  Haymarket,  and,  based 
upon  his  reading,  as  to  the  guilt  or  innocence  of  the  de- 
fendants of  that  crime.  He  also  stated  that  he  had  as  a 
result  of  his  investigations  a  prejudice  against  socialists, 
anarchists  and  communists  (i  A.,  io8;  Vol.  F,  134,  135, 
139);  but  he  also  stated  that  he  believed  that  he  could 
render  a  fair  and  impartial  verdict,  and  was  accepted 
notwithstanding  his  bias  or  prejudice. 

John  B.  Greiner,  one  of  the  twelve,  said  that  he  had 
heard  and  read  of  the  Haymarket  meeting,  and  from  his 
reading  had  formed  an  opinion  as  to  the  guilt  of  the  de- 
fendants, or  some  of  them.  The  following  further  oc- 
curred in  his  examination  (i  A.,  121;  Vol.  G,  356): 

"  The  distinction  is  this,  whether  or  not  your  opinion 
"  is  that  an  offense  was  committed  at  the  Haymarket 
"  merely,  or  whether  it  is  that  the  defendants  are  con- 
"  nected  with  the  offense  that  was  so  committed?  A. 
"  Well,  it  is  evident  that  the  defendants  are  connected 
"  with  it  from  their  being  here,  as  far  as  that  is  con- 
"  cerned. 

"  Q.  You  regard  that  as  being  evidence?  A.  Well, 
" — well,  I  don't  know  exactly;  I  would  expect  of  course 
"  that  it  connected  them,  or  they  would  not  be  here. 

"  Q.  Well,  that  would  infer  that  somebody  thought  so, 
"  anyhow,  or  else  the  whole  thing  would  be  a  very  foolish 
"  proceeding.  So  then  the  opinion  that  you  have  has 
"  reference  to  the  guilt  or  innocence  of  some  of  these  men, 


382 

•"  or  all  of  them?  Now,  is  that  opinion  one,  Mr.  Greiner, 
^'  which  would  influence  your  verdict  if  you  should  be 
"  selected  as  a  juror  to  try  the  case,  do  you  believe?  A. 
^'  I  certainly  think  it  would  affect  it  to  some  extent.  I 
"  don't  see  how  it  could  be  otherwise." 

Mr.  Greiner,  however,  stated  that  he  believed  he  could 
render  fairly  and  impartially  a  verdict  upon  the  law  and 
the  evidence  in  the  case,  and  was  accepted. 

Chas.  a.  Ludwig,  one  of  the  twelve,  admitted  a  prej- 
udice against  socialists,  communists  and  anarchists,  but 
inasmuch  as  his  answers  to  other  questions  were  com- 
paratively unobjectionable  he  was  accepted,  (i  A.,  83: 
Vol.   D,  352,   362,392.) 

Alanson  H.  Reed,  one  of  the  twelve,  stated  that  he 
had  an  opinion  concerning  the  commission  of  the  offense 
at  the  Haymarket,  and  from  newspaper  reports  had  an 
•opinion  concerning  the  guilt  or  innocence  of  the  defend- 
ants, or  some  of  them,  and  that  he  had  a  prejudice  de- 
rived from  his  reading  against  socialists  and  communists. 
Further  on  he  stated  that  the  opinion  which  he  formed, 
•touching  the  guilt  or  innocence  of  the  defendants,  was 
•both  from  what  he  read  in  the  paper  and  what  he  heard, 
but  principally  from  the  newspaper  reports.  His  answers 
upon  other  questions,  however,  in  the  main,  were  satis- 
factory, and  he  was  accepted.      (Vol.  G,  253  et  seq.) 

C.  B.  Todd,  one  of  the  jurors,  stated  that  he  had  heard 
and  read  about  the  Haymarket  aflair,  and  from  all  sources 
of  information,  he  had  an  opinion  upon  the  question  of 
the  guilt  or  innocence  of  the  defendants  of  the  crime  of 
murder,  which  opinion  he  had  expressed  to  others  in  the 
course  of  discussions  upon  the  matter,  (i  A.,  55; 
Vol.  B,  279-300.) 

Aside  from  these  matters,  however,  his  answers  were 
.substantially  unobjectionable,  and  he  was  accepted. 


383 

G.  W.  Adams,  one  of  the  twelve  jurors,  upon  his  di- 
rect examination  by  Mr.  Grinnell,  admitted  that  he  had 
read  and  heard  about  the  Haymarket  affair,  and  had 
formed  an  opinion  as  to  the  character  of  the  crime  there 
committed,  but  denied. that  he  had  formed  any  opinion  as 
to  wliether  or  not  the  defendants  were  guilty,  (i  A.,  124; 
Vol.  H,  33.)  But  upon  cross-examination  by  defendants, 
he  admitted  that  he  had  formed  an  opinion  that  some  of 
the  defendants  were  interested  in  that  crime,  which 
opinion  he  still  entertained.  (Vol.  H,  29,  40.)  He  stated, 
however,  that  he  did  not  think  the  opinion  was  a 
strong  one,  and  that  he  believed  that  he  could  fairly  and 
impartially  render  a  verdict  in  the  case,  and  laj'  aside  all 
prejudice,  bias  and  opinion  in  reaching  his  verdict.  He 
was  thereupon  accepted. 

Andrew  Hamilton  (i  A.,  79;  Vol.  D,  259  ci  se^.)s\.aled, 
in  substance,  that  he  had  said  that  somebody  ought  to  be 
made  an  example  of  in  connection  with  this  affair,  and 
that  if  it  should  be  proved  that  the  defendants  were  the 
men  whose  names  he  saw  in  the  papers,  connected  with 
the  affair,  then  he  thought  they  should  be  made  examples 
of.  Otherwise  his  answers  were  satisfactor}',  and  he  was 
sworn.. 

H.  T.  Sanford,  who  was  the  last  juror  examined  (r  A., 
139;  Vol.  H,  293  c(  sec/.),  slated  that  he  had  an  opinion 
from  what  he  had  read  and  heard  as  to  the  guilt  or  in- 
nocence of  the  eight  defendants  of  the  throwing  of  the 
bomb.  He  also  said  that  he  had  a  decided  prejudice 
.against  socialists,  communists  and  anarchists.  He  was 
thereupon  challenged  for  cause  by  the  defendants,  despite 
his  statement  that  he  believed  that  he  could  fairly  and 
impartially  render  a  verdict  in  the  case.  He  was  there- 
upon interrogated  by  the  state,  when  the  following  oc- 
curred: 


384 

"  Q.  Have  you  ever  said  to  any  one  whether  or  not 
"  you  believed  the  statement  of  facts  in  the  newspapers 
"  to  be  true?  A.  I  had  never  expressed  it  exactly  in 
"  that  wa}-,  but  still  I  have  no  reason  to  think  they  were 
"  false. 

"  Q.  The  question  is  not  what  your  opinion  of  that 
"  was.  The  question  simply  is — it  is  a  question  made 
"  necessary  by  our  statute,  perhaps?  A.  Well,  I  don't 
"  recall  whether  1  have  or  not." 

Thereupon  the  challenge  for  cause  was  overruled, 
and  defendants  excepted. 

Prior  to  the  examination  of  this  juror,  as  the  record 
discloses,  the  defendants  had  exhausted  all  their  peremp- 
tory challenges,  and,  their  challenge  for  cause  being  over- 
ruled, they  stopped  and  refused  to  accept  Mr.  Sanford  as 
a  juror.      (Vol.  H,  301.) 

Subsequently  Mr.  Sanford  was  accepted  by  the  state, 
and  was  sworn  as  a  juror. 

The  nine  jurors  last  above  named,  together  with  Mr. 
Frank  Osborne,  Mr.  Samuel  G.  Randall  and  Theodore 
Denker,  constituted  the  panel  by  which  the  defendants 
were  tried. 

As  to  Mr.  Adams  and  Mr.  Denker,  we  would  like  to 
offer  a  few  remarks  in  particular. 

Upon  the  motion  for  a  new  trial  there  was  filed  by  the 
defendants,  in  support  of  their  motion,  the  affidavit  of 
Michael  Cull,  who  stated  that  shortly  after  the  Haymarket 
aflair  he  had  a  conversation  with  said  Adams,  at  which  a 
number  of  other  persons  were  present,  in  reference  thereto, 
in  which  said  Cull  stated:  "That  the  police  had  no  right 
"  to  interfere  with  the  meeting;  that  if  they,  the  police, 
"  had  let  the  meeting  alone  they  would  have  gone  home 
"  in  a  little  while,"  to  which  said  Adams  replied  that  the 
police  ought  to  have  shot  them  all  down;  that  they,  mean- 


385 

ing  the  defendants,  had  no  rights  in  this  country,  and  that 
"  it  I  was  on  the  jury  I  would  hang  ail  the  damned  bug- 
"  gars."  That  Adams  evinced  a  good  deal  of  bitter 
feeling  against  the  defendants.  It  is  true  that  an  affidavit 
of  Mr.  Adams  was  filed  in  behalf  of  the  state,  which  de- 
nied the  statements  of  Cull's  affidavit.  But  the  fact  stands 
with  reference  to  Mr.  Adams  that  after  first  stating,  on 
his  voi}-  dire,  that  he  had  formed  no  opinion  as  to  the 
guilt  or  innocence  of  the  defendants  touching  the  Ha}-- 
market  affair,  he  subsequently,  on  cross-examination,  ad- 
mitted that  he  had  formed  such  an  opinion,  thus  directly 
contradicting  himself;  while  Cull's  affidavit,  if  believed, 
shows  the  expression  of  a  strong  feeling,  and  a  strong 
adverse  opinion  upon  his  part. 

The  case  of  Theodore  Denker,  one  of  the  twelve 
who  tried  the  case,  presents  special  features,  to  which  we 
wish  to  call  attention.  He  was  examined  on  the  fourth 
day  of  the  proceedings  (Vol.  B,  125  et  seq).  He  ad- 
mitted that  he  had  heard  of  the  Haymarket  affair,  and 
that  he  had  expressed  an  opinion  as  to  the  guilt  or  inno- 
cence of  the  defendants  of  the  murder  charged,  which  he 
still  entertained.  That  he  believed  what  he  had  read 
and  heard  upon  the  subiect,  and  that  he  thought  that  the 
opinion  was  such  as  would  prevent  him  from  rendering 
an  impartial  verdict.  He  was  thereupon  challenged  for 
cause. 

Mr.  Grinnell  then  asked  him  if  he  believed  he  could 
determine  the  guilt  or  innocence  of  the  defendants  upon 
the  proof  presented  in  court,  without  reference  to  his 
prejudice  or  opinion,  and  regardless  of  what  he  had 
heard,  and  he  stated  that  he  believed  he  could.  There- 
upon the  court  asked  this  question: 

"  Do  you  believe  that  you  can  fairly  and  impartially 
"  try  the  case,  and  render   an    impartial  verdict,  upon   the 


386 

"  evidence  as  it  may  be  presented  here,  and  the  instruc- 
"  tions  of  the  court?" 

To  which  he  replied:  "Yes;  I  think  I  could."  There- 
upon the  court  overruled  the  challenge  for  cause,  and  de- 
fendants excepted.  Thereupon  he  was  re-examined  by 
defendants,  and  again  admitted  that  he  had  formed  an 
opinion  as  to  the  guilt  or  innocence  of  the  defendants, 
which  he  had  expressed  frequently  and  without  hesita- 
tion. He  persisted,  however,  in  stating  that  he  believed 
that  he  could  lay  aside  his  prejudice  or  opinion  and  try 
the  case  fairly,  and  was  finally  accepted. 

In  support  of  the  motion  for  a  new  trial,  the  defendants 
introduced  the  affidavits  of  Thomas  J.  Morgan  and  of 
Thomas  S.  Morgan,  who  both  testified  unequivocally  that 
on  the  morning  of  the  6th  of  May,  Denker  stated  to 
them,  and  in  their  hearing,  referring  to  Spies,  Fielden, 
Schwab  and  Fischer  particularly,  who  had  been  arrested 
on  the  5th  of  May  for  alleged  complicity  with  the  Hay- 
market  affair,  and  referring  particularlj'  to  Spies:  "  He 
"  and  the  whole  damned  crowd  ought  to  be  hung." 
This  remark  of  Denker's  was  made  with  much  feeling 
and  emphasis  (Vol.  O,  56.)  It  is  true  that  the  affida- 
vit of  Mr.  Denker  himself  to  contradict  these  statements 
of  Thomas  J.  and  Thomas  S.  Morgan  was  permitted  to 
be  read  (Vol.  O,  100),  in  which  he  denied  that  he 
made  the  remark  sworn  to  by  the  Morgans,  although  he 
again  admitted  that  he  had  an  opinion,  and  had  expressed 
that  opinion. 

That  the  court  erred  i  n  overruling  our  motion  for  a 
new  trial,  even  if  that  motion  had  been  based  alone  on  the 
ground  of  the  showing  that  the  juror  Denker  was  not 
an  impartial  and  competent  juror,  admits,  we  respectfully 
submit,  of  no  doubt,  in  the  light  of  well-considered 
authority.     Let    it    be    remembered    that  the  juror  ad- 


387 

initted,  upon  his  voir  dire,  that  he  was  prejudiced, 
liad  an  opinion,  which  he  had  expressed  frequently  to 
others,  and  did  not  think  that  he  could  fairly  try  the 
case.  Challenged  for  cause  on  these  answers,  he  was 
coached  into  a  retraction  thereof,  and  into  the  state- 
ment that  he  believed  he  could  fairly  and  impartially  try 
the  case;  and  thereupon  the  challenge  was  overruled, etc. 
Upon  the  motion  for  a  new  trial  two  affidavits  were  pro- 
duced showing  that  Denker  had,  several  days  after  the 
4th  of  May,  stated,  referring  to  Spies  and  other  of  the 
defendants  then  under  arrest,  that  "  he  and  the  whole 
*'  damned  crowd  ought  to  be  hung."  These  affidavits 
are  altogether  unimpeached,  and  the  only  effort  to  meet 
them  is  the  unsupported  affidavit  of  Denker.  The  new 
trial  should  have  been  granted  on  this  ground,  if  for  no 
other  reason. 

Closely  parallel  to  the  case  made  against  Mr.  Denker 
on  these  affidavits  was  the  case  against  the  juror  Finley,  on 
account  of  whose  prejudice  alone  there  was  a  reversal  in 
Venimni  v.  Harwood,  i  Gil.,  659,  a  case  that  arose  under 
1he  constitution  of  1818.  In  support  of  a  motion  for  a  new 
trial  in  that  case,  one  Wilson  swore  to  statements  made  by 
Finley  before  being  taken  as  a  juror,  to  the  effect  that  the 
plaintiff  ought  to  recover  heavy  damages;  and  one  Craw- 
ford swore  that  he  heard  Finley,  after  the  trial,  say  to 
Wilson  that  he,  Finley,  had  told  him  how  the  case  would 
go,  etc.  Finley's  affidavit  was  read,  in  which  he  swore 
that  while  he  had  talked  with  Wilson  and  Crawford  since 
the  trial,  he  had  never,  as  he  believed,  made  any  such 
declarations  as  they  stated;  and  that  prior  to  the  trial  he 
had  never  in  fact  formed  or  expressed  anj^  opinion  about 
the  case,  and  that  he  had  acted  impartially  as  a  juror:  a 
much  stronger  affidavit  than  Denker's,  as  will  be  observed. 
Yet  our  Supreme   court  unhesitatingly  reversed  the  judg- 


;SS 


ment  on  this  sole  ground,  citing  and  approving  the  lan- 
guage used  in  Smith  v.  Eaines^  3  Scam.,  76,  and  Gardner 
V.  The  People,' id.,  83. 

In  Brakefieldv.  The  State,  i  Sneed,  215,  the  Supreme 
court  of  Tennessee  used  the  following  language: 

"  It  is  said  that  William  Perry,  one  of  the  jurors,  had 
"  prejudged  the  case,  and  was  therefore  incompetent.  To 
"  support  this  fact,  two  afSdavits  were  produced  on  the 
"  motion  for  a  new  trial;  first,  Oscar  states  that  as  he  came 
"  to  court  with  Perry,  the  morning  he  was  taken  on  the 
"jury,  he  asked  him  if  he  was  not  afraid  to  go  to  town. 
"  Perry  replied:  '  No;  I  have  formed  my  opinion  as  to  the 
"  last  case  therein;  as  to  Brakefield,  I  believe  he  ought 
"  to  be  hung';  and  Edwards  states  that  he  was  in  com- 
"  pany  with  Perry  on  his  way  to  the  court,  who  inquired 
"  of  him  if  he  was  not  a  witness  in  this  case.  Affiant 
"  replied  that  he  was  a  witness  for  the  stale.  Perry  then 
"  said,  alluding  to  the  prisoner,  '  Damn  him,  he  ought  to 
"  be  hung.'  The  prisoner  states  in  his  affidavit  that  he 
"  had  no  knowledge  of  these  facts  when  Perry  was  taken 
"  on  the  jury. 

"It  is  well  settled  that  loose  impressions  and  conversa- 
"  tions  of  a  juror,  founded  upon  rumor,  will  not,  if  disclosed 
"  by  him  or  others  to  the  court,  have  the  effect  to  set  him 
"  aside  as  incompetent. 

"  But  was  Perry's  remark  a  mere  loose  impression 
"founded  upon  rumor?  We  think  not.  His  statement  is 
"in  the  strongest  terms  of  opinion,  conviction  and  preju- 
"dice;  he  pronounced  the  prisoner  as  guilt}-,  and  guilty  of 
"  the  highest  grade  of  murder.  He  stands  clearly  convicted 
"  of  having  prejudged  the  case.  His  examination  upon  his 
"  voir  dire  before  the  court  does  not  appear.  His  counter- 
"  affidavit  is  produced  to  explain  the  matter,  but  /'/  is  a  sct- 
"  tied  rule  that  the  affidavit  0/  an  offending  Juror  cannot  l,e 


389 

"  relied  icpoii  to  exculpate  himself  and  prejudice  the 
'■•prisoner.''''  Hynes  v.  The  State,  8  Humph.,  602;  Lilster 
V.  The  State,  ir  Humph.,  170. 

"  We  are  to  presume  that  his  statement  before  the 
*' court  made  him  apparently  competent  as  a  juror;  after 
"  the  trial  he  is  accused  upon  the  evidence  of  the  wit- 
"  nesses  as  having  prejudged  the  case.  The  juror  stands 
*' criminated  before  the  court,  and  in  such  case  his  own 
*'  affidavit  cannot  be  credited  or  relied  on  when  it  involves 
"the  rights  of  the  accused.  Other  affidavits  of  jurors 
"  were  made  to  the  etiect  that  Perry,  the  juror,  was  favor- 
"  able  to  the  prisoner  on  the  trial.  This  fact  we  regard 
^'  as  not  competent  to  the  issue,  which  is,  was  the  juror 
"competent?  Not  what  his  conduct  was  after  he  was 
"  taken  on  the  jur}'.  If  he  was  put  to  the  prisoner  as  a 
"competent  juror,  when  he  was  in  fact  incompetent,  the 
"  rights  of  the  prisoner  were  violated,  and  it  is  a  legal 
*'  presumption  that  he  was  injured.  *  *  *  A  verdict 
"  thus  tainted  cannot  be  permitted  to  stand.  The  pris- 
"  oner  was  entitled  to  an  impartial  jury." 

While  it  may  be  that  under  our  practice  the  affidavit  of 
Denker  in  contradiction  of  the  affidavits  of  T.  J  and  T. 
S.  Morgan  may  be  entitled  to  be  read  and  considered, 
yet,  as  said  by  the  Supreme  Court  of  Tennessee,  "  the 
^'  affidavit  of  an  offending  juror  cannot  be  relied  on  to  ex- 
"  culpate  himself.  *  *  *  The  juror  stands  crimi- 
"  nated  before  the  court,  and  in  such  case  his  own  affidavit 
"  cannot  be  credited  or  relied  on,  -when  it  involves  the  rights 
"  of  the  accused.''''  With  reference  to  his  affidavit,  we 
beg  to  submit  the  following  further  criticism.  There  is 
no  statement  in  Denker's  affidavit  that  he  never  used  to 
any  person  the  language  attributed  to  him,  to  wit:  "  He 
and  the  whole  damned  crowd  ought  to  be  hung";  the 
denial  is  specific,  namely,  that  he  never  made  that  state- 


39° 

ment  to  the  particular  affiants;  while  he  admits,  in  sub- 
stance, that  he  did  have  an  opinion  adverse  to  the  prison- 
ers, an  opinion  as  to  their  guilt,  which  he  had  freely 
expressed.  Was  he  a  competent  and  proper  juror  to  be 
put  to  these  prisoners?  And  is  a  "verdict  thus  tainted," 
one  that  should  be  sustained  in  the  due  administration  of 
justice? 

As  bearing  upon  the  contradictory  answers  given  by 
Mr.  Denker,  and  as  showing  that  he  ought  to  have  been 
excluded  from  the  panel  by  the  court  upon  our  challenge 
for  cause,  we  cite  again  the  case  of  Wright  v.  Common- 
wealth, 32  Gratlan,  941.  There,  as  in  the  case  at  bar, 
the  juror  first  stated  "he  had  made  up  and  expressed  an 
"opinion  in  the  case;  that  the  opinion  so  made  up  and 
"expressed  was  still  upon  his  mind;  that  he  did  not  think 
"he  could  do  the  prisoner  justice";  but  in  answer  to  the 
questions  of  the  court  whether,  should  the  evidence  be 
different  from  what  he  had  heard,  his  opinion  would  be 
changed,  he  stated  that  it  would,  and  that  he  could  come 
to  the  trial  with  an  unbiased  and  unprejudiced  mind,  and 
give  the  accused  a  fair  trial,  and  thereupon  the  trial  court 
overruled  the  challenge.  The  case  is  exactly  parallel 
in  these  regards  with  the  action  of  Judge  Gary  as  to  juror 
Denker.  The  Supreme  court  of  Virginia  held  that  this 
action  was  error,  for  which  the  case  was  reversed,  and 
laid  down  the  law,  in  favor  em  vitce,  as  follows: 

II  *  *  *  If  the  juror  has  made  up  and  expressed  a 
"  decided  opinion  as  to  the  guilt  or  innocence  of  the 
"accused,  he  is  incompetent;  and  it  does  not  matter 
"  whether  the  opinion  be  founded  on  conversations  with  a 
"  witness  or  on  mere  hearsay  or  rumor;  it  is  sufficient  that 
"  the  opinion  is  decided,  and  has  been  expressed.  When, 
"however,  the  opinion  is  founded  on  common  rumor,  the 
"  presumption    is    that    it    is    merely  hypothetical,  and  it 


391 

•will  be  so  considered  in  the  absence  of  proof  to  the  con- 
'  trary.  But  whether  the  opinion  be  hypothetical  or  de- 
'  cided,  whether  founded  on  rumor  or  on  evidence  heard 
'  at  the  trial,  the  juror  must  be  free  from  prejudice  against 
'  the  accused.  He  must  be  able  to  give  him  a  fair  and  an 
'impartial  trial.  Upon  this  point  nothing  should  be  left. 
'  to  inference  or  doubt.  All  the  tests  applied  by  the 
'  court,  all  the  inquiries  made  into  the  state  of  the  juror's 
'  mind,  are  merely  to  ascertain  whether  he  comes  to  the 
'trial  free  from  partiality  and  prejudice.  If  there  be  a 
'  reasonable  doubt  whether  the  juror  possesses  these 
'  qualities,  the  doubt  is  sufficient  to  insure  his  exclusion. 
'  For,  as  has  been  well  said,  it  is  not  only  important  that 
'justice  should  be  impartially  administered,  but  that  it 
'  should  flow  through  channels  as  free  from  suspicion  as 
'  possible." 


V.    THE  CONDUCT  OF  THE.  SPECIAL  BAILIFF. 

We  deem  it  proper  also  to  call  attention  to  the  fact  that 
we  were  subjected  to  most  outrageous  misconduct  on  the 
part  of  a  special  baliff,  who  had  in  charge  the  summon- 
ing of  the  talesmen. 

In  support  of  our  motion  for  a  new  trial  we  filed  an 
application  for  leave  to  examine  as  a  witness  in  open 
court  Otis  Favor,  and  to  use  his  examination  upon  the 
motion.  We  filed,  beside  the  formal  affidavit  of  defend- 
ants, the  affidavit  of  E.  A.  Stevens,  who  stated  that  Fa- 
vor was  an  intimate  acquaintance  of  the  special  bailifT, 
Ryce,  and  that  affiant  had  learned  from  Favor  that  while 
said  Ryce  was  serving  the  venires  in  the  present  case  he 
stated  to  said  Favor,  and  to  others  in  Favor's  presence, 
in  substance,  this:   "  I  am  managing  this  case  and  I  know 


392 

"  what  I  am  about.  Those  fellows  will  hang,  as  certain 
"  as  death.  I  am  summoning  as  iurors  such  men  as  they 
"  will  be  compelled  to  challenge  peremptorily,  and  when 
"  they  have  exhausted  their  peremptory  challenges,  they 
"  will  have  to  take  such  a  jury  as  is  satisfactory  to  the 
"  state."     (i  A.,  25;  Vol.  O,  51.) 

Judge  Gary  refused  to  order  the  examination  of  Mr. 
Favor  upon  this  application,  to  which  the  defendants  ex- 
cepted. Nevertheless,  we  are  convinced  that  the  bailiff 
did  make  these  declarations,  and  did  act  upon  the  line  of 
policy  therein  indicated.  We  submit  that  the  court  erred 
in  not  allowing  the  examination  of  Mr.  Favor,  and  that 
it  was  an  abuse  of  judicial  power  to  refuse  such  exami- 
nation, it  appearing  from  the  affidavits  filed  that  Favor 
refused  to  make  an  affidavit  in  the  case  to  be  used  in  sup- 
port of  the  motion  for  a  new  trial,  but  expressed  a  readi- 
ness to  appear  and  testify,  if  required. 

The  refusal  of  Judge  Gary  to  order  Mr.  [Favor's  ex- 
amination, as  appears  from  the  record,  was  based  prima- 
rily on  a  denial  by  him  of  his  -power  to  so  do.  We  submit 
that  the  court  was  wrong  in  this  position.  This  is  not 
and  cannot  be  the  law.  Had  we  been  permitted  to  show, 
and  had  we  established  by  proofs  in  support  of  our  mo- 
tion for  a  new  trial,  this  villainy  practiced  against  the  rights 
and  lives  of  the  defendants,  there  can  be  no  question  that 
we  would,  on  this  ground  alone,  have  been  entitled  to  a 
new  trial. 

But  the  power  of  the  court  to  order  the  examination 
admits  of  no  doubt.  The  case  was  still  in  court  awaiting 
final  disposition — and  the  court  was  possessed  of  plenary 
power  to  require  the  appearance  and  testimony  of  wit- 
nesses so  far  as  requisite  to  the  due  administration  of 
justice.  The  power  of  the  court  to  require  witnesses  to 
appe.ir    and    testify,    even    after   judgment,    is    distinctly 


393 

recognized  in  such  cases  as  when  one  is  examined  as  to 
his  testimony  on  a  trial,  in  order  to  settle  a  point  for  a  bill 
of  exceptions.  People  v.  Jameson,  40  111.,  93.  And  the 
granting  of  such  a  motion  as  was  here  made  is  recognized 
as  proper  practice  in  those  jurisdictions  (as  in  England 
and  Pennsylvania),  where,  upon  a  motion  for  new  trial,  a 
rule  to  show  cause  is  entered.  Under  such  a  rule  deposi- 
tions may  be  taken  on  notice,  or  under  a  special  rule  wit- 
nesses may  be  examined  in  open  court.  (Troubat  & 
Holz's,Pr.,  §§1,459  and  1,472,  pages  852  and  853.) 
Under  our  practice  a  motion  is  filed,  supported  by  affi- 
<iavits.  But  justice  forbids  that  one  should  be  denied  an 
opportunity  to  support  his  motion  because  of  the  refusal 
of  a  party  to  give  an  affidavit,  to  compel  which  there  is 
no  statutor}'  provision;  and  in  such  case  requires  an  order 
that  he  should  be  examined.  To  refuse  such  order  on 
the  application  and  showing  made  in  this  case  was  so 
flagrantly  unjust  as  to  be  palpably  erroneous. 


VI.     MISCONDUCT  OF  JURY. 

There  is  one  point,  as  to  the  conduct  of  the  jury  upon 
this  trial,  which,  alike  upon  reason  and  authority,  we  deem 
it  proper  to  present  to  this  court  upon  consideration  of 
this  record.  It  appears  from  one  of  the  affidavits  filed  in 
support  of  the  motion  for  a  new  trial  (i  A.,  29;  O,  84), 
and  it  is  not  in  any  manner  contradicted,  that  after  the 
jury  were  sworn  to  try  the  issues,  before  any  testimony 
was  offered,  the  presiding  judge  proposed  to  counsel  that 
the  jury  should  be  furnished  from  day  to  day  with  a 
short-hand  writer's  transcript  of  the  testimony  taken  upon 
the  previous  day.  This  proposition  defendants,  by  their 
counsel,  declined  to  accede  to. 


394 

It  appears,  however,  that  from  day  to  day,  during  the 
progress  of  the  trial,  various  of  the  jurors  took,  notes,, 
short-hand  or  otherwise,  of  portions  of  the  testimony  as  it 
was  being  oftt;red,  which  they  carried  with  them  from  the 
jury  box  from  day  to  day.  We  believe  this  conduct  was- 
erroneous,  and  that  it  should  not  have  been  allowed.  The 
objections  to  it  are  obvious.  Instead  of  the  jurors  pre- 
serving, as  far  as  possible,  a  clear  mind,  listening,  as  far 
as  possible,  with  impartial  attention  to  all  of  the  testi- 
mony, and  giving  equal  consideration  to  it  all,  their  atten- 
tention,  those  of  them  who  were  engaged  in  taking  notes,, 
would  from  time  to  time  be  drawn  off  from  what  was 
currently  passing,  by  their  own  e.xercise  in  taking  down  the 
notes  of  the  testimony;  while,  still  further,  in  a  subsequent 
consideration  of  the  testimony,  that  which  they  had  thus 
noted  was  likely  to  be  given  undue  weight  and  promi- 
nence in  their  deliberations.  Such  conduct  upon  the  part 
of  a  jury  has  been  e.vpressly  held  to  be  error  for  which  a 
reversal  should  be  ordered. 

Thompson  and  Merriam  on  Jury,  Sec.  390. 

Cheek  v.  State,  35  Indiana,  492. 

Palmer  v.  Stale,  29  Arkansas,  249. 

If  this  be  the  law,  then  here  also  was  ground  on  which 
a  new  trial  should  have  been  granted,  and  the  refusal  to 
grant  a  new  trial  under  the  circumstances  was  error  for 
which  there  should  be  a  reversal. 


VII.     AS  TO  THE  NUMBER  OF  PEREMPTORY  CH.\L- 
LENGES  ALLOWED  THE  STATE. 

The  next  point  to  which  we  desire  to  call  attention, 
arising  in  connection  with  the  selection  of  the  jury,  is  this: 
When  the  state  had,  by  its  representative,  peremptorily 


395 

challenged  twenty  proposed  jurors,  it  happened  that  there 
was  tendered  to  the  state  as  a  juror  acceptable  to  the  de- 
fendants, August  Berg,  who  was  thereupon  peremptorily 
challenged  by  the  state.  Whereupon  the  defendants  in- 
terposed respectively  the  following  objection  (i  A.,  83; 
Vol.  D,  367): 

"  August  Spies,  the  accused,  objects  to  any  further 
"  peremptory  challenge  by  the  attorney  prosecuting  on 
«  behalf  of  the  people,  because  the  said  attorney  has 
"  already  been  admitted  to,  and  has  exercised  against  this 
"  accused,  twenty  peremptory  challenges,  being  the  full 
"  number  of  peremptory  challenges  allowed  to  this 
"  accused  under  the  statute;  and  in  the  exercise  of  such 
"  challenges  has  excluded  from  the  jur}'  divers  jurors 
"  who  were  acceptable  to,  and  accepted  by,  this  accused." 

The  same  objection  was  interposed  in  behalf  of  each  of 
the  accused  at  that  juncture.  The  objection  being  over- 
ruled, the  peremptory  challenge  was  allowed;  and  there- 
after in  the  progress  of  the  trial  more  than  thirty  addi- 
tional peremptory  challenges  were  exercised  by  the 
attorney  prosecuting  on  behalf  of  the  people,  and  making 
the  total  number  of  peremptor}'  challenges  exercised  by 
said  attorney  between  fifty  and  sixty.  In  each  and  every 
instance  of  such  peremptory  challenge  by  the  state,  after 
the  first  twenty,  the  same  objection  was  interposed  in  be- 
half of  each  of  the  several  defendants,  and  in  each  and 
every  instance  each  and  ever}'  of  the  defendants  excepted 
to  the  ruling  of  the  court  allowing  such  additional  per- 
emptory challenges. 

The  disposition  of  this  objection  involved  a  discussion 
as  to  the  proper  construction  of  the  provision  of  our  stat" 
ute  with  reference  to  peremptory  challenges. 

The  argument  on  that  point  appears  somewhat  fully 
in  Vol.  D,  pp.  368  to  391. 


396 

The  positions  taken  in  support  of  the  objection  may  be 
summarized  as  follows:  That  while  the  statute  provides 
that  "  every  -person  arraigned  for  any  crime  punishable 
•"  with  death  or  imprisonment  in  the  penitentiary  for  life 
•"  shall  be  admitted  to  a  peremptorj^  challenge  of  twenty 
*'  jurors,"  etc.,  "  the  attorney  prosecuting  on  behalf  of 
"  the  people  shall  be  admitted  to  a  peremptory  challenge 
"  of  the  same  number  of  jurors  that  the  accused  is  en- 
"  titled  to."  In  contemplation  of  law,  the  defendants 
in  a  criminal  action,  no  matter  how  many  of  them 
there  may  be,  constitute  but  one  party,  and  the  trial 
is  a  trial,  in  each  instance,  between  the  people  on  one  side 
and  one  defendant  or  accused  upon^  the  other,  whose  rights 
are  to  be  guarded.  That  the  state  cannot  multiply  its  chal- 
lenges by  increasing  the  number  of  parties  defendant,  any 
more  than  it  can  abridge  the  right  of  each  person  defending 
to  his  separate  number  of  challenges  by  joining  such  per- 
son with  others.  That  any  other  construction  of  the  statute 
would  enable  the  attorney'  prosecuting  on  behalf  of  the 
people  to  multiply  his  challenges  indefinitely,  by  joining 
as  defendants  persons  against  whom  he  might  know 
that  he  had  no  evidence.  In  the  case  at  bar,  under  the 
construction  contended  for  by  the  state's  attorney,  the 
state  might  have  exercised  i6o  peremptory  challenges, 
and  then,  before  offering  a  particle  of  proof,  might  have 
dismissed  as  to  every  defendant  except  one,  and  pro- 
ceeded against  him.  That  in  such  case  the  state  would 
have  exercised  i6o  challenges  peremptorily  as  against 
the  defendant  tried,  to  the  manifest  perversion  of  the  pro- 
vision of  the  statute.  That  if  the  state  elects  to  try  the 
defendants  jointlj',  and,  as  in  the  case  at  bar,  opposes  a 
separate  trial,  the  state  must  take  that  position,  subject  to 
the  possible  disadvantage  of  the  defendants  jointly  exer- 
cising more  peremptory  challenges  than   the   state  is  in 


397 

such  case  entitled  to.  The  language  of  the  statute  in 
reference  to  the  peremptory  challenges  by  the  attorney 
prosecuting  in  behalf  of  the  people,  is  explained  by  re- 
ferring to  the  fact  that  in  the  previous  parts  of  the  section 
the  number  of  peremptory  challenges  allowed  to  every 
person  arraigned  is  stated  with  reference  to  different 
crimes;  and  then  comes  the  general  provision  that  the  at- 
torney for  the  people  "  shall  be  admitted  to  a  peremptory 
"  challenge  of  the  same  number  of  jurors  that  the  accv.sed 
"  is  entitled  to  "  ;  the  language  of  the  statute  being  in 
the  singular,  and  not  to  be  enlarged.  In  support  of  our 
construction  of  this  statute,  and  of  our  objection  to  the  ex- 
ercise of  these  additional  peremptory  challenges,  we  beg 
to  call  the  attention  of  the  court,  without  citing  at  length, 
to  the  following  authorities: 

The  question  considered   arises   upon  a  construction    of 
section    432   of   the    Criminal    Code,  Kurd's  Rev.  Stat. 

1885. 

Schaefcr  v.  The  Slate,  3  Wis.,  730. 

Wiggins  V.  The  State,  i  Lea  (Tenn.),  738. 
Mayhon  v.  Tlie  State,  10  Ohio,  232. 
State  V.  Earle,  24  La.  Ann.,  38. 
State  V.  Gay,  25  La.  Ann.,  472. 
Savage  v.  The  State,  18  Fla.,  925. 

Wylie  V.  The  State,  4   Blackf.  (Ind.),  458. 

State  V.  Bced,  47  N.  H„  466. 


VIII.    THE  MANNER  OF  EMPANELING  THE  JURY. 

Sec.  21  of  Starr  and  Curtis'  Annotated  Statutes,  Vol. 
2,  Chap.  78,  provides: 

"  Upon  the  empaneling  of  any  jury  in  any  civil  cause 
"  now  pending,  or  to  be  hereafter  commenced  in  any  court 


398 

"  in  this  stale,  it  shall  be.  the  duty  of  the  court,  upon 
"  request  of  either  party  to  the  suit,  or  upon  its 
"  own  motion,  to  order  its  (the)  full  number  of  twelve 
"  jurors  into  the  jury  box,  before  either  party  shall 
*'  be  required  to  examine  any  of  said  jurors  touching 
"  their  qualifications  to  trj'  any  such  causes:  Provided, 
"  that  the  jury  shall  be  passed  upon  and  accepted  in 
"  panels  of  four  by  the  parties,  commencing  with  the 
■"  plaintiff." 

Sec.  23  of  the  same  act  provides: 

"  The  provisions  of  this  act  shall  apply  to  proceedings 
"  in  both  civil  and  criminal  cases." 

In  the  present  case  a  panel  of  four  jurors  were,  after 
being  passed  upon  and  accepted  by  the  state,  tendered  to 
the  defense  by  the  state.  They  were  then  examined,  and 
three  of  them,  for  instance,  were  excused  for  cause,  and 
one  oeremptorily.  That  left  the  box  vacant.  The  de- 
fense then  asked  the  court  that  another  panel  of  four  be 
first  passed  upon  and  accepted  and  tendered  them  by  the 
state,  but  the  court  ruled,  against  the  objection  and  excep- 
tion of  the  defendants,  that  the  defendants  must  pass  upon 
and  tender  the  next  panel  of  four  jurorsto  the  state.  (See 
I  A.,  39;  Vol.  A.,  71,  72.) 

The  record  discloses  that  the  same  point  was  made  in 
every  instance  by  the  defendants  in  the  course  of  the  em- 
paneling of  the  jury  where  the  four  tendered  b)'  the  state 
were  exhausted,  either  for  cause  or  peremptorily,  with  the 
same  ruling  on  the  part  of  the  court,  and  in  ever}' instance 
the  defendants  excepted. 

The  court  slated,  upon  disposing  of  the  said  motion,  as 
follows  (A.,  71):  "  There  has  never  been  an  instance  in 
"  this  court  of  the  slate  being  called  upon  to  tender  tiie 
"  defendants  a  second  panel  before  the  defendants  ten- 
"  dered  them  back  four." 


399 

As  to  the  law  on  this  point,  we  be^jj  to  cite  Braizer  v. 
The  State,  34  Ala.,  387,  and  the  court  there  says: 

"  Where  the  statute  provides  a  mode  of  empaneling  a 
■"  jury,  no  other  mode  can  be  followed." 

In  Filzfatrick  v.  City  of  Jol/'et,  87  111.,  58,  the  court 
(page  62),  in  delivering  its  opinion,  decides  this  verj- 
point  and  says:  "  But  the  defendant  in  error  held  the 
^'  affirmative,  and  was,  very  properly,  in  the  first  instance, 
"  required  to  pass  on  the  jury  first,  and  this  should  have 
"  been  required  as  often  as  new  jurymen  were  placed  in 
"  the  box  to  take  the  place  of  others  who  had  been  ex- 
"  cused,  leaving  the  plaintiff  in  error  an  opportunity  to 
"  object  as  often  as  new  jurors  were  presented,  so  long  as 
"  their  rights  of  peremptory  challenge  were  not  ex- 
^'  hausted." 


CC.    IMPROPER  REMARKS  BY  THE  COURT. 

We  respectfully  submit  that,  in  addition  to  the  matters 
hereinbefore  considered,  plaintiffs  in  error  were  aggrieved 
by  the  repeated  improper  remarks  made  by  the  court 
during  the  progress  of  the  empaneling  of  the  jury  and 
upon  the  hearing  of  this  case,  remarks  which  were  full 
of  hostile  suggestion,  and,  as  we  view  it,  could  not  but 
have  had  a  tendency  to  prejudice  the  minds  of  the  jurors 
against  the  plaintiffs  in  error.  We  do  not  propose  to 
prolong  our  argument  by  attempting  to  present  to  this 
court  all  of  the  remarks  made  by  the  presiding  judge  in 
the  progress  of  the  trial,  which  are,  in  our  opinion,  justl}' 
subject  to  this  criticism;  but  we  will  proceed  to  call  atten- 
tion to  some  illustrations. 

Upon  the  examination  of  Mr.  Shedd,  a  proposed  juror 
(i  A.,  36;  Vol.  A,  397),  after  Mr.  Shedd  had  admitted  his 


400 

prejudice  against  the  plaintiffs  in  error,  growing  out  of 
what  he  had  heard  and  read,  and  also  that  he  had  a  de- 
cided prejudice  against  the  class  known  as  socialists,  com- 
munists or  anarchists,  which  he  believed  would  prevent 
him  from  rendering  an  impartial  verdict  if  it  should  ap- 
pear that  the  defendants'  belonged  to  that  class,  this  oc- 
curred: 

"  The  Court:  I  know,  or  the  court  judicially,  what 
"  are  the  objects  of  communists,  socialists  and  anarchists. 
"  *  *  *  You  must  presume  that  I  know,  be- 
"  cause  it  has  been  decided  that  for  a  man  to  say  that  he 
"  is  prejudiced  against  horse-thieves  is  no  ground  for  im- 
"  puting  to  him  any  misconduct  as  a  juror.  Now,  you 
"  must  assume  that  I  know  either  that  anarchists,  social- 
"  ists  and  communists  are  a  worthy,  a  praiseworthy  class 
"  of  people,  having  worthy  objects,  or  else  I  cannot  say 
"  that  a  prejudice  against  them  is  wrong." 

Can  it  be  argued  that  this  remark  was  not  in  its  nature 
highly  prejudicial  to  the  plaintiffs  in  error  upon  the 
hypothesis  of  their  being  socialists,  communists  or  an- 
archists? Here  was  a  suggestion  by  the  court  to  the 
jury  that  he  knew,  judicially  (of  course  he  did  not,  but  he 
so  staled),  what  were  the  objects  of  socialists,  anarchists 
and  communists;  and  then,  by  way  of  illustrating  his 
position,  he  mentioned  prejudice  against  the  class  of  horse- 
thieves;  the  only  occasion  of  such  reference  being  that 
thereby  the  court  suggested  an  analogy  between  the 
classes.  In  other  words,  the  expression  of  the  court  was 
e.\-actly  equivalent  to  saying:  "  I  know  the  purposes  of 
"  socialists,  anarchists  and  communists — that  they  are  as 
"  pernicious  and  unjustifiable  as  the  vocation  of  horse- 
"  thieves;  and  therefore  Mr.  Shedd's  prejudice  against 
"  this  class,  even  though  he  admits  that  it  is  such  that  he 
"  could  not  render  a  fair  verdict  where  one  of  them  is  in- 


40I 

"  volved,  is  not  a  disqualifying  prejudice."  In  other 
words,  the  court  in  effect  ruled  that  if  a  man  was  a  social- 
ist, anarchist  or  communist,  he  was  known  to  the  court 
judicially  to  be  of  such  evil  purposes  and  so  bad  a  char- 
acter that  he  was  not  entitled  to  an  unprejudiced  jury, 
but  was  well  enough  off  if  he  had  a  jury  even  of  men 
prejudiced  against  the  class  to  which  he  belonged,  and 
that  such  prejudice  was  not  a  disqualification. 

No  other  view  of  the  effect  of  these  remarks  can  be 
entertained  reasonably  in  the  light  of  his  closing  words, 
when  the  judge  said:  "  You  must  assume  that  I  know 
"  that  anarchists,  socialists  and  communists  are  a  worthy, 
"  a  praiseworthy  class  of  people,  having  worthy  objects, 
•'  or  else  I  cannot  say  that  a  prejudice  against  them  is 
'  wrong."  To  so  state,  after  saj'ing  that  he  did  know 
their  objects,  and  then  to  overrule  a  challenge  on  the 
ground  of  the  admitted  prejudice,  was  exactly  equivalent 
to  saying  that,  knowing  their  objects,  and  that  they  were 
not  a  worthy  class  of  people,  a  prejudice  against  them 
was  not  wrong.  The  constitution  piovides  for  an  un- 
prejudiced jury,  without  .regard  to  the  character  of  the 
class  to  which  the  accused  may  be  supposed  to  belong. 

In  connection  with  the  examination  of  the  very  next 
proposed  juror,  J.  K.  Misch,  after  Mr.  Misch  had  ad- 
mitted a  like  prejudice  to  that  admitted  by  Mr.  Shedd, 
and  had  stated  that  he  thought  it  would  require  more 
testimony  if  the  plaintiffs  in  error  belonged  to  this  class  of 
people  to  find  them  not  guilty  than  though  they  did  not 
belong  to  this  class,  and  that  therefore  he  did  not  think 
that  he  could  make  a  fair  juror,  the  court  asked  the 
question:  "  Is  your  prejudice  upon  this  subject  based  upon 
"  the  idea  that  you  suppose  this  class  are  in  favor  of 
"  overturning  society  by  force  "?  To  this  remark  an  ob- 
jection was  at  once  interposed.    That  it  was  improper  for 


402 

the  court  to  ask  a  question  of  this  kind  we  think  admits 
of  no  argument,  particularly  following  his  former  re- 
marks, above  quoted.  It  does  not  make  any  difference 
upon  what  the  talesman's  prejudice  was  based,  if  it  was 
a  prejudice  that  the  talesman  was  conscious  of  and  which, 
in  the  opinion  of  the  talesman,  disqualified  him  to  sit  in 
judgment  in  the  case  by  destroying  his  impartiality.  It 
was  not  for  the  court  to  investigate  as  to  the  foundation 
of  the  talesman's  prejudice,  and  particularly  not  for  the 
court,  in  the  process  of  such  investigation,  to  suggest  the 
idea  that  the  plaintiffs  in  error  were  in  favor  of  overturn- 
ing society  by  force.  Both  of  these  talesmen  were  chal- 
lenged peremptorily,  Mr.  Shedd  after  the  challenge  for 
cause  had  been  overruled. 

In  the  course  of  the  examination  of  James  H.  Walker 
(i  A.,  105;  Vol.  F,  41),  after  the  talesman  had  admitted 
that  he  had  an  opinion  which  would  handicap  his  judg- 
ment, the  court  said,  in  the  presence  of  talesmen  who 
were  awaiting  examination:  "  Well,  that  is  a  sufficient 
"  qualification  for  a  juror  in  the  case.  Of  course,  the 
"  more  a  man  feels  he  is  handicapped,  the  more  he  will 
"  be  guarded  against  it." 

This  remark  of  the  court  is  followed  in  the  record  by 
an  exception  thus  expressed: 

"  Mr.  Black:  We  e.xcept  to  that  remark  by  the  court. 
'•  We  do  not  think  it  is  in  accordance  with  observation 
•'  and  judgment  and  experience.  We  think  it  is  an  im- 
"  proper  remark  to  make  in  the  presence  of  the  jurors, 
"  and  would  like  to  have  the  record  show  that  the  seals 
"  are  full  and  talesmen  present  at  the  time  the  remark  is 
*'  made." 

That  a  man  leans  against  his  previous  opinion,  as  here 
assumed  by  the  court,  is,  of  course,  an  utterly  mistaken 
assumption.      If  the   position  here   announced  by  Judge 


403 

Gary  be  correct,  then  the  more  prejudiced  the  jury 
against  the  accused — providing  only  that  the  jury  were 
men  of  sufficient  intelhgence  to  recognize   the    prejudice, 

and  men  of  sufficient  honesty  to   wish  to   act   fairly the 

more  suitable  they  would  be  as  jurors,  and  the  more  fully 
they  would  meet  the  constitutional  requirement  of  an  im- 
partial jury.  Can  any  suggestion  be  more  absurd?  But 
the  special  objection  to  the  making  of  the  remark  at  the 
time  and  the  place  was,  that  it  would  have  a  natural  ten- 
dency to  mislead  the  talesmen  awaiting  examination.  It 
was,  in  effect,  a  statement  to  them  that,  no  matter  what 
their  recognized  prejudice  in  the  case,  yet  that  prejudice 
•  would  not  in  fact  disqualify  them  from  acting  as  fair  and 
impartial  jurors;  and  it  was,  therefore,  a  direct  incentive 
to  them  to  answer  to  the  question  whether  they  believed 
they  could  fairly  and  impartially  try  the  case  and  render 
a  verdict,  that  they  did  so  believe,  without  reference  to 
the  prejudice  that  they  recognized  as  existing  in  them 
selves.  The  remark  was  clearly  improper  and  highly 
prejudicial. 

The  remarks  made  by  the  court  in  connection  with  the 
ruling,  during  the  examination  of  Mr.  Waller,  we  have 
already  presented  fully. 

A  little  later,  Theodore  Fricke  was  called  as  a  witness 
for  the  prosecution.  In  the  course  of  his  examiuation 
Most's  book  was  presented  to  him,  and  he  thereupon  said 
that  he  had  seen  Most's  book  in  the  Arbeiter  Zeitung 
library,  and  also  had  seen  it  sold  by  Hirschberger  at  so- 
cialistic picnics  and  mass-meetings,  at  some  of  which 
meetings  Spies,  Parsons,  Fielden,  Neebe,  Schwab  and 
perhaps  Fischer  had  sometimes  been  present.  Counsel 
in  behalf  of  the  plaintiffs  in  error  objected  to  this  entire 
line  of  inquiry,  because  it  was  not  shown  that  any  of  the 
defendants  knew  of  or   participated  in  the  selling,  or  had 


404 

anything  to  do  with  it,  or  that  they  saw  the  selling. 
Thereupon,  in  ruling  upon  this  objection,  the  following  oc- 
curred (A.,  41,  42;  Vol.  I,  477) : 

"  The  Court:  If  men  are  teaching  the  public  how  to 
"  commit  murder,  it  is  admissible  to  prove  it,  if  it  can  be 
"  proved  by  items. 

"  Mr.  Black.  Well,  does  your  Honor  know  what 
"  this  teaches? 

"  The  Court:  I  don't  know  what  the  contents  of  the 
"book  are;  I  asked  what  the  book  was  and  I  was  told 
"  that  it  was  Herr  Most's  Science  of  Revolutionary 
"  Warfare,  and  taught  the  preparing  of  deadly  weapons 
"  and  missiles,  and  that  was  accepted  by  the  other  side. 

"  Mr.  Black:  Does  that  justify  your  Honor  in  the 
"  construction  that  it  teaches  how  to  commit  murder,  or 
"  stating  that  in  the  presence  of  the  jury? " 

Defendants  thereupon  e.xcepted  to  the  language  of  the 
court,  whereupon  the  court  said: 

"  I  inquired  what  sort  of  book  it  was,  and  it  was  stated 
"  by  the  other  side  what  sort  of  book  it  was,  and  3-ou  said 
'«  nothing  about  it;  so  that  in  ruling  upon  the  question 
"  whether  it  may  be  shown  where  it  was  to  be  found, 
"  where  it  had  been  seen,  I  must  take  the  character  of 
"  the  book  in  consideration  in  determining  whether  it  is 
"  admissible.  Whether  it  is  of  that  character  or  not,  we 
"  will  see  when  it  is  translated,  I  suppose.  I  suppose  the 
"  book  is  not  in  the  English  language." 

Could  any  language  be  more  improper  than  this  of  the 
court  in  passing  upon  this  objection?  The  language  of 
the  court  was  tantamouut  to  saying — inasmuch  as  these 
plaintiffs  in  error  are  teaching  the  public  how  to  commit 
murder,  this  book  is  admissible  to  help  prove  that  fact. 
In  other  words,  the  language  of  the  court  started  on  the 
hypothesis  that  this  was  being  done.    "  If,"  says  the  courtr 


405 

-"  men  are  teaching  the  people  how  to  commit  murder,  it 
■"  is  admissible  to  prove  it  if  it  can  be  proved  by  items." 
And  yet,  the  court  was  compelled  to  admit,  a  httle 
further  on,  that  he  did  not  know  the  contents  of  the 
proposed  book,  but  assumed  that  it  was  characterized  by  • 
teachings  to  commit  murder,  and,  therefore,  ruled  that 
■evidence  as  to  when  and  where  it  was  disposed  of  should 
be  permitted  to  go  to  the  jury,  upon  the  assumption  that 
-when  the  translation  should  afterwards  be  introduced,  it 
might  have  a  tendency  to  establish  this  hypothesis,  sug- 
gested by  the  court,  first  of  all  in  the  rulings  in  connection 
with  Waller's  testimony,  and  here  repeated  in  the  most 
radical  form.  There  was  no  possible  excuse  for  the  sug- 
gestion by  the  court,  at  that  juncture,  that  Most's  book,  not 
then  as  yet  before  the  jury,  riot  then  as  yet  translated,  did  in 
fact  teach  how  to  commit  niurder;  or  making  in  the  pres- 
ence of  the  jury  the  suggestion  that  was  made.  The  un- 
avoidable application  which  would  be  made  by  the  jurors 
-of  the  remark  was  to  the  plaintiffs  in  error,  as  the  parties 
supposed  by  the  court  to  be  engaged  in  "  teaching  the 
"  people  how  to  commit  murder." 

So,  later  in  the  case,  when  the  translations  of  Most's 
book  and  of  the  International  Workingpeople's  Associa- 
tion were  offered  in  evidence  (A.,  72;  Vol.  J,  192  et 
sc(j.),  the  court,  in  allowing  the  introduction  of  the  docu- 
ments, used  the  following  language: 

"  I  have  no  doubt  but  what  it  is  competent.  The  cir- 
"  cumstances  may  be  significant  or  not,  depending 
^'  upon  the  surroundings;  whether  it  is  significant 
"  or  not  it  is  for  the  jury  to  determine  from  the 
"  surroundings  which  come  before  them.  Whether 
"  the  defendants,  or  any  of  them,  were  intending 
"  to  have  a  mob  kill  people,  and  were  teaching  them  how 
^'  to  kill  people,  is  a  question  which  this  jury  is  to  find  out 


4o6 

"  from  the  evidence. ^And  these  two  translations  are  ad- 
"  missible  upon  the  investigation  of  that  question." 

Was  that  question  fairiy  under  investigation  b}-  this 
jury?  Suppose  that  the  defendants,  or  some  of  them,  were 
"  intending  to  have  a  mob  kill  people,  and  were  teaching 
"  them  how  to  kill  people,"  what  had  that  to  do  legitimately 
with  the  issue  before  the  jury,  which  was  simply  whether 
or  not  the  plaintiffs  in  error  killed  Mathias  J.  Degan,  or 
advised,  assisted,  [encouraged  or  abetted  that  homicide? 
The  suggestion  was  an  improper  suggestion  to  be  made. 
It  was  an  intimation  to  the  jury  at  an  improper  time,  from 
an  improper  source.^in  an  improper  manner,  that,  in  the 
view  of  the  court,  it  was  a  question  for  the  determination 
of  the  jury,  whether  the  defendants  were  intending  lo 
have  a  mob  kill  people,  and  were  teaching  them  how  to 
kill  people. 

So,  in  connection  with  the  ruling  upon  the  motion 
made  in  Neebe's  behalf,  there  were  highl}-  improper  sug- 
gestions and  remarks  made  by  the  court,  in  our  judgment, 
upon  which,  however,  we  have  sufficiently  commented, 
and  to  which  we  now  simply  refer. 

Finally,  under  this  head,  we  call  attention  to  the  re- 
marks of  the  court  occurring  in  connection  with  the  ex- 
amination of  Johann  Grueneberg,  a  witness  called  to  the 
stand  by  the  plaintiffs  in  error  (A.,  257,  258;  Vol.  M, 
259,  260.)  Mr.  Grueneberg  had  been  examined  in  refer- 
ence to  the  occurrences  attending  the  printing  of  the  cir- 
cular calling  the  Haymarket  meeting,  and  the  ordering 
out  of  the  line,  "  Workingmen,  arm  yourselves  and  ap- 
pear in  full  force!"  by  Mr.  Fischer;  the  printing  of  the 
residue  of  the  circular  thereafter  without  that  line,  and 
the  distribution  thereof.  This  was  all.  In  the  course  of 
cross-examination  the  representatives  of  the  state  were 
allowed  to   depart   entirely    from    the  direct  examination. 


407 

and  to  inquire  as  to  the  witness'  whereabouts,  etc.,  on 
the  da3'S  previous  to  the  day  of  the  printing  of  this  circu- 
lar. The  question  was  asked  him  as  to  whether  he  was 
at  home  on  Sunday  morning,  May  2d.  To  this  question 
an  objection  was  interposed,  on  the  ground  that  it  was  not 
proper  cross-examination;  whereupon  the  court  ruled  in 
the  following  language: 

"  You  have  put  this  witness  on  the  stand  for  the  pur- 
"  pose  of  showing  a  thing  was  taken  out  of  a  particular 
"  circular;  whether  he  has  told  that  thing  as  it  occurred 
"  depends  to  some  degree  upon  what  his  associations^ 
"  feelings,  inclinations,  biases  are  in  reference  to  the 
"  whole  business." 

Thereupon  counsel  for  plaintiffs,  in  unfeigned  astonish- 
ment, responded,  "  Whether  he  has  told  the  truth  in  re- 
"  gard  to  that  depends  upon  his  biases  and  inclinations?" 

The  Court:  "  Whether  it  is  to  be  believed — I  don't 
"  mean  whether  he  has  told  tiie  truth." 

Exception  to  the  ruling  and  the  language  of  the  court 
was  interposed  on  behalf  of  plaintiffs  in  error. 

If  this  same  language  had  been  used  by  counsel  instead 
of  by  the  presiding  judge,  we  would  feel  warranted  in 
saying  it  was  a  deliberate  and  unjustifiable  effort  to  dis- 
credit before  the  jury  an  unimpeached  witness,  testifying 
in  reference  to  a  particular  fact  as  to  which  there  was  no 
attempt  to  contradict  him  then  or  at  any  time  in  the  prog- 
gress  of  the  case.  It  will  not  be  pretended  that  there  is  a 
particle  of  evidence  in  this  record  showing  or  tending  to 
show  that  Mr.  Grueneberg's  testimony  as  to  the  taking 
out  of  that  line  in  the  circular,  and  as  to  all  the  matters 
connected  with  it,  was  not  absolutely  true.  No  contra- 
diction of  his  testimony  was  in  the  record  up  to  the  time 
of  his  testifying  and  of  the  court  making  this  ruling,  no 
impeachment   had    been  suggested  or  attempted.     There 


was  nothing  in  the  record  to  raise  the  slightest  question, 
at  that  juncture,  but  that  the  witness  was  telling  the 
exact  truth.  What  justification  could  there  be,  then,  for 
the  court  to  suggest  to  the  jury  the  question  whether  the 
witness  was  telling  the  truth  as  to  the  matter  testified  of, 
and  that  that  question  was  one  to  be  determined  at  least 
measurably  by  showing  the  bias,  prejudice  or  associations 
■of  the  witness? 

We  respectfull}-  submit  that  there  can  be  no  excuse 
whatever  for  these  various  utterances  of  the  presiding 
judge  to  which  we  have  had  to  call  attention,  and  other 
like  utterances,  and  that  they  were  altogether  improper, 
highly  prejudical  to  the  rights  and  interests  of  the  plain- 
tiffs in  error,  and  therefore  materially  erroneous. 

In  support  of  our  position  upon  this  point,  and  that 
such  improper  remarks  afford  ground  for  reversal,  we 
cite  the  following  authorities: 

Andrews  v.  Ketcham,  77  111.,  377. 
State  V.  Harkin,  7  Nev.,  382. 
Hair  V.  Little,  28  Ala.,  236. 


«).     THE   IMPROPRIETIES  OF  THE   CLOSIXli   .VRGUMENT  OF 
THE  STATE'S  ATTORNEY. 

One  point  made  in  support  of  the  motion  for  a  new 
rial  was,  that  "  the  closing  argument  of  the  state's  at- 
torney was  improper  in  its  statement  of  substantive  mat- 
'  ters  not  in  evidence,  in  its  appeals  to  the  prejudices  and 
■  passions  of  the  jury,  in  its  misstatement  of  the  issues, 
'  and  in  its  abusiveness  to  the  defendants,  all  having  a  nat- 
ural tendency  to  mislead  the  jury  and  to  prevent  a  fair 
and  impartial  verdict."  (\'ol.  O,  p.  44.) 
In  support  of  this   point    under   the    motion    for    anew 


409 

trial,  an  affidavit  was  filed  setting  forth  various  extracts 
taken  from  the  short-hand  report  of  the  closing  argument 
of  Mr.  Grinnell,  which  extracts  appear  in  r  A.,  29  cl  seq; 

0,  86  cl  scij.,  87  to  94,  inclusive,      (i  A.,  29-33.) 

1.  The    Objectionable    Remarks   of    the    State's 

Attorney. 

From  this  affidavit  it  appears  the  defendants  were  called 
by  Mr.  Grinnell  "loathsome  murderers;"  also  "these 
"  wretches  here;"  also  "  assassins,"  and  a  second  time  on 
the  same  page  the}^  are  spoken  of  as  "  a  lot  of  wretches." 
Then  shortl}'  followed  these  words:  "There  is  one  step 
"  from  Republicanism  to  anarchy.  Let  us  never  take 
"  that  step.  Gentlemen,  the  great  responsibility  that  is 
"  devolved  upon  you  in  this  case  is  greater  than  any  jury 
"  in  the  history  of  the  world  ever  undertook.  This  is  no 
^'  slight  or  mean  duty  that  you  are  called  upon  to  per- 
"  form.  You  are  to  say  whether  that  step  shall  be 
"  taken." 

The  state's  attorney  further  claimed  that  the  jury 
were  really  trying  the  defendants  "  for  the  murder  of 
"  seven  officers  as  well  as  for  the  injury  to  these  sixt}' 
"  others,"  and  also  urged  upon  the  jury,  as  a  reason  wh)- 
they  should  find  the  defendants  guilty,  that  if  they  were 
acquitted  that  was  the  end  of  the  case,  and  there  was  no 
appeal  by  the  State  of  Illinois,  and  then  used  this  lan- 
guage: "  If,  however,  in  the  trial  of  this  case,  you  should 
"  find  that  the  defendants  are  guilty,  from  the  proof  in 
"  this  case  and  under  the  instruction  of  the  court,  you 
"  then,  in  rendering  your  verdict,  do  what  the  gentlemen 
"  upon  the  other  side,  from  the  numerous  exceptions  the}' 
"  have  taken,  expect  you  to  do,  find  the  defendants  guilty, 
"  thev  can  appeal.      If  they  do  not  like  your  verdict  they 


"  can  ask  this  court  to  set  it  aside,  or  the  Supreme  court 
"  to  review  your  judgment." 

On  page  89,  the  state's  attorney,  against  the  objection 
and  in  the  face  of  the  contradiction  interposed  at  the  time 
by  defendant's  counsel,  stated  to  the  jury,  in  commending 
the  argument  of  his  associate,  Mr.  Ingham,  as  follows: 
''  As  one  of  the  counsel  said  to  me  in  the  hall,  his  argu- 
"  ment  was  unanswerable,  and  therefore  they  would  not 
"  undertake  it." 

On  the  same  page  it  appears  that  the  state's  attorney 
used  the  following  language:  "  Prejudice?  Men,  organ- 
"  ized  assassins,  can  preach  murder  in  our  city  for 
"  years,  you  deliberately  under  your  oaths  hear  the  proof, 
"  and  then  say  3-ou  have  no  prejudice."  Thereupon 
counsel  for  defense  excepted  to  the  language  of  the  state's 
attorney  and  protested  against  the  continued  reference  to 
the  defendants,  whose  guilt  was  the  question  of  consider- 
ation, as  assassins.  The  court  simply  replied:  "Save 
your  e  xceptions." 

From  the  same  page  it  appears  that  Mr.  Grinnell  fur- 
ther said:  "  We  stand  here,  gentlemen,  as  I  told  you 
"  yesterday,  already,  with  the  verdict  in  our  favor — I 
"  mean  in  favor  of  the  prosecution  as  to  the  conduct  of 
"  this  case."  Counsel  for  defendants  thereupon  arose, 
took  an  exception  to  the  statement  of  the  state's  attorne}-, 
and  denounced  the  same  as  outrageous.  To  which  the 
court  responded,  "  Save  the  point  upon  it." 

On  page  90  Mr.  Grinnell  stated  as  follows:  "  Gilmer 
"told  us  the  story  on  the  5th  or  the  6th  or  the  7th — I 
"  will  not  be  sure  about  the  date ;  and  he  told  us  all  the  time 
"  the  same."  Thereupon  counsel  for  defendants  excepted 
to  the  statement  that  Gilmer  had  at  all  times  told  the  same 
story.  After  some  discussion  with  the  court  on  that 
point,  the  state's  attorney   stated  substantially   as   follows 


(page  91) :  "  When  we  had  Spies  under  arrest,  I  confess 
"  to  you  then,  and  after  it  was  developed  that  a  conspiracy 
"  existed — I  confess  this  weakness — that  I  did  not  sup- 
"  pose  that  a  man  living  in  our  community  would  enter 
"  into  a  conspiracy  so  hellish  and  damnable  as  the  proof 
"  showed  and  our  investigations  subsequently  showed  he 
"had  entered  into,  and  therefore,  notwithstanding  Gil- 
"  mer's  statement  to  us  so  frequently,  he  was  not  shown 
"  and  not  identified."  And  thereupon,  in  reference  to  his 
opening  statement  as  to  the  bomb-thrower,  Mr.  Grinnell 
stated  as  follows:  "  I  said  in  that  opening  that  we 
"  would  show  to  you  who  threw  that  bomb;  I  said 
"  in  that  opening  that  we  would  show  that  the  man 
"  left  the  wagon,  lighted  the  match  and  threw  the 
"  bomb. 

"  That  was  not  absolutely  correct.  I  should  have  said 
"  that  the  man  that  came  from  the  wagon,  as  the  proof 
"  shows,  and  as  we  knew  came  from  the  wagon,  was  in 
"  that  group,  assisted,  and  that  the  bomb  was  thrown  by 
"  the  man  whom  we  would  show  to  you.  My  associates 
"  found  fault  with  me  in  the  office  immediately  afterwards 
"  for  not  more  clearly  defining  it."  To  this  statement 
exception  was  taken. 

Could  there  be  a  greater  abuse  of  the  privileges  of 
counsel  than  this?  A  part  of  our  attack  on  Gilmer's 
evidence  was  that  to  Graham  he  said  he  saw  the  man- 
light  the  fuse  and  throw  the  bomb — a  statement  totally  at 
variance  with  his  evidence.  Mr.  Grinnell  in  his  opening 
had,  as  he  here  admitted,  stated  in  efiect  that  the  evidence 
would  show  the  one  man  who  left  the  wagon,  lighted  the 
fuse  and  threw  the  bomb;  a  direct  confirmation  of  Graham 
and  impeachment  of  Gilmer.  Was  it  allowable  to  the 
state's  attorney  to  attempt  in  his  closing  argument  to  take 
back   his  opening   statement,  declare   what  occurred   be- 


tween  himself  and  his  associates  and  attempt  bj'  his  asser- 
tions to  fortify  his  witness? 

Later,  Mr.  Grinnell  stated  to  the  jur}-  as  follows  (page 
92):  "  Don't  try,  gentlemen,  to  shirk  the  issues.  Law 
'•  is  on  trial.  Anarchy  is  on  trial.  The  defendants  are 
'•  on  triaiybr  /reason  and  murder."  And  thereupon  Mr. 
Grinnell  proceeded  to  argue  the  question  of  the  crime  of 
treason,  and  the  penalty  of  treason  as  death  without  any 
modified  punishment,  using,  with  other,  the  following 
language:  "  Under  the  laws  of  this  state,  if  an  individual 
"  is  guilty  of  treason,  the  punishment  is  death.  There 
"  is  no  mitigation,  no  palliation,  no  chance  for  the  jury  to 
"  hedge  on  the  oflense.  For  that  ofTense  5'ou  cannot  say 
"  that  this  man  shall  have  a  few  years  in  the  penitentiary, 
"  and  that  one  a  few  more,  and  that  one  shall  suffer  the 
"  extreme  penalty  of  death.  No,  it  is  death.  And 
"  treason,  gentlemen,  can  only  be  committed  by  a  citizen. 
■"  None  of  these  defendants,  exxept  Parsons  and  Neebe, 
"  are  citizens.  *  *  *  if  they  had  been  citizens,  you 
"  (counsel  for  defendants)  would  have  proved  it.  Or  else 
"  there  was  more  design  in  it  than  that.  You  failed  to 
"  prove  it,  because  thinking  there  might  be  some  possible 
"  chance  or  technicality  in  the  upper  court.  *  *  * 
"  The  penalty  for  treason  is  death,  and  it  is  death,  in 
"  treason,  whether  the  individual  committing  the  treason 
"  kills  a  man  or  not."  With  more  language  of  the  same 
character. 

Farther  on  in  his  argument  (page  93)  he  stated  as 
follows:  "But  not  content,  these  revolutionists,  these 
"  traitors,these  men  who  have  committed  treason — I  thank 
"  again  the  gentleman  for  the  word — these  men  who  have 
"  committed  treason  are  not  content  with  confining  their 
"  power  and  influence  to  the  small  limits  of  Cook  county, 
"  but  Spies  goes  to  Grand  Rapids,  and  there  gives  utter- 


41.3 

"  ance  to  these  same  treasonable  sentences,"  etc.  And, 
again:  "  Courageous  men  !  Herr  Most  gives  the  plan," 
etc. 

Farther  on  he  called  the  defendants  and  others  associ- 
ated with  them,  "infamous  scoundrels,"  "  wretches  who 
"  have  attempted  to  betray  the  law."  Thereupon,  Mr. 
Grinnell  stated  as  follows:  "  Weekly,  since  the  4th  of 
"  May,  have  bombs  been  found  scattered  in  the  north 
"  and  west  and  south-west  parts  of  the  city,  and  they 
"  will  continue  to  be  found."  To  which  statement  de- 
fendants excepted,  as  being  unsupported  by  evidence. 

Nearing  the  close  of  this  argument  (page  94)  he  said: 
"  If  I  had  the  power  I  would  like  to  take  you  all  over  to 
"  the  Haymarket  that  night,  and  with  you  with  tears  in 
"  your  eyes  see  the  dead  and  mingle  with  the  wounded 
"  and  dying,  see  law  violated,  and  then  I  could,  if  I  had 
"  the  power,  paint  you  a  picture  that  would  stetl  your 
"  hearts  against  the  defendants^  And  then  referring  to 
the  testimony  of  the  officer  who  swore  that  Fielden  shot 
him  in  the  knee,  he  said:  "  For  the  purpose  of  correcting 
"  myself,  I  had  the  officer  come  to  my  office  and  examined 
"  the  wound,  and  I  found  that  the  bullet  went  in  there 
"  (indicating)  and  came  out  above,  going  around  up 
"  opposite  the  knee-cap,  and  was  not  from  behind." 
Thereupon  there  was  an  exception  to  the  statement  on 
the  ground  that  Mr.  Grinnell  had  no  right  to  say  that  he 
had  seen  the  wound  again,  and  thereupon  Mr.  Grinnell 
repeated  his  statement,  indicating  the  alleged  course  of 
the  wound.     To  all  of  which  defendants  excepted. 

It  will  be  observed  from  these  statements  that,  as 
stated  in  the  point  under  the  motion  for  a  new  trial,  the 
closing  argument  of  Mr.  Grinnell  had  in  it  repeated  state- 
ments of  substantive  matter  not  in  evidence,  appeals  to 
the  prejudices  of  the  jury,  distinct   misstatements  of  the 


414 

issues;  and  was  exceedingly  abusive  in  its  expressions 
towards  the  defendants. 

In  other  words,  in  a  case  where  the  defendants  were 
on  trial  charged  with  murder,  and  where  the  counsel  for 
defendants  had  been  prohibited  by  the  court  from  exam- 
ining the  jurors  as  to  the  extent  to  which  their  admitted 
prejudices  against  anarchists,  socialists,  etc.,  might  influ- 
ence them,  the  counsel  for  the  state  called  the  defendants 
"loathsome"  "murderers,"  "organized"  "assassins," 
<'  wretches,"  "  scoundrels  "  and  "  anarchists  " — claimed  to 
the  jury  that  the  law  was  on  trial;  that  anarchy  was  on 
trial — claimed  the  defendants  were  being  tried,  not  only 
for  the  murder  of  seven  men,  instead  of  the  one  covered 
by  the  indictment,  but  also  for  the  wounding  of  sixty 
others;  made  positive  statements  of  matters  dehors  the 
record  tending  to  prejudice  the  defendants,  and  appealed 
to  the  jury  to  convict  the  defendants  on  the  ground  that 
their  acquittal  was  the  end  of  the  case,  no  appeal  being 
allowed  to  the  state,  but  that  upon  conviction  they  could 
appeal;  and  urged  a  conviction  as  the  duty  of  the  jur}-,  in 
order  to  save  our  institutions  from  overthrow. 

We  repeat  what  we  have  said  before  herein,  that  in 
this  case  and  under  this  argument  and  appeal  of  the 
state's  attorney,  the  defendants  were  convicted,  not  be- 
cause they  were  proved  guilty  of  the  murder  of  Mathias 
J.  Degan,  but  because  they  were  anarchists;  and  that  was 
the  issue  which  the  attorney  for  the  people  distinctl}' 
stated  to  the  jury  was  before  them. 

Such  improprieties  on  the  part  of  the  counsel  for  the 
state,  particularly  in  a  closing  argument,  have  always  been 
held  in  themselves  to  entitle  the  defendants  to  a  new,  in 
order  that  they  may  have  a  fair,  trial.  This  court  has  had 
occasion  recently  severely  to  reprobate  the  license  of 
counsel  for  the  state  in  prosecutions. 


2.     Decisions  relating  to  the  impropriety  of 
REMARKS  of  Counsel. 

In  I^ox  V.  The  People,  95  111.,  70-79,  this  court  used 
the  following  language  by  Mr.  Chief  Justice  Walker: 
^'  It  is  complained  that  the  state's  attorney  was  unfair  in 
"  his  closing  argument  to  the  jury;  that  he  assumed  facts 
"that  were  not  proved,  and  urged  them  for  a  conviction. 
"  It  is  the  duty  of  the  Circuit  court  in  such  cases  to  stop 
-"counsel;  to  effectually'  prevent  such  unfairness  when 
■"  attempted.  Its  duty  is  in  all  cases,  and  emphatically  so 
"  when  life  or  liberty  is  involved,  to  prevent  such  unfair 
"conduct  on  the  part  of  counsel.  It  cannot  be  sanctioned 
"  to  permit  the  people's  attorney  to  thus  treat  the  accused, 
"  who  is  restrained  of  his  liberty,  and  is  helpless  unless 
"  protected  by  the  court.  Nor  is  it  the  duty  of  the  state's 
"  attorney  to  urge  an  unwarranted  conviction,  or  resort  to 
"  unfair  means  to  procure  one,  when  he  believes  there  is 
"  no  guilt.  The  prisoner  should  in  all  cases  be  treated 
"  with  fairness,  and  it  is  the  duty  of  the  court  to  see  that 
"  this  right  is  not  infringed. 

"  Complaints  of  this  character  are  beginning  to  be 
"  brought  before  us,  and  what  is  here  said  refers  more  to 
"  the  rule  of  practice  that  should  obtain  in  all  cases  than 
"  with  reference  to  this  case.  But  in  this  case  we  are  of 
"opinion  that  a  portion  of  the  argument  on  the  part  of 
"  the  people  was  not  fully  warranted  by  the  evidence.  It 
"  may  be  that  the  objectionable  portions  are  not  of  such  a 
"  character  as  would  alone  justify  a  reversal.  But  when 
"  the  unfairness  is  gross  it  would  be  our  duty  in  all  doubt- 
"  ful  cases  to  reverse  alone  for  that  reason."  The  judg- 
ment in  this  case  was  reversed. 

See  also  Hennies  v.   Vogle,  87  111.,  242. 

In  Ferguson   v.  The  Stale,  49   Ind.,  43,   objection    was 


4i6 

made  to  the  expressions  of  the  state's  attorney  in  the 
closing  argument,  and  in  reference  thereto  the  court  used 
the  following  language: 

"  The  bill  of  exceptions  shows  the  following  facts, 
"which  were  also  assigned  as  a  cause  for  a  new  trial: 
" '  On  and  during  the  progress  of  argument  of  counsel, 
"  counsel  for  state  commented  upon  the  frequent  occur- 
"  rence  of  murder  in  the  community,  and  the  formation 
"  of  vigilance  committees  and  mobs,  and  that  the  same 
"  was  caused  by  the  laxity  of  the  administration  of  laws, 
"stating  to  the  jury  that  they  should  make  an  example 
"  of  the  defendant.  And  the  defendant,  by  his  counsel, 
"  asked  the  court  to  restrain  the  counsel,  and  objected  to 
"  said  comments,  because  there  was  no  evidence  of  such 
"matters  before  the  jury;  but  the  court  overruled  said 
"  motion,  and  remarked  in  the  hearing  and  the  presence 
"  of  the  jury  that  such  matters  were  proper  to  be  com- 
"  mented  upon,  to  which  defendants  at  the  same  time 
"  excepted,  and  still  except.' 

"  The  comments  and  argument  of  counsel  and  remarks 
"  of  the  court  during  a  trial  may  be  within  the  discretion 
"  of  the  judge  presiding,  but  it  is  a  judicial  discretion, 
"  and  if  improperly  used  to  the  injury  of  either  party, 
"  it  may  and  ought  to  be  revised  and  controlled  by  this 
"  court.  If  it  was  proper  to  present  these  things  to 
"  and  comment  upon  them  before  the  jur}',  it  was  proper 
"  for  the  jury  to  consider  them  in  making  up  their  ver- 
"  diet.  These  things  were  outside  of  the  record  and  the 
"  evidence,  and  were  calculated  to  prejudice  the  rights 
"  of  the  defendant.  It  was  tantamount  to  saying  to  the 
"jury,  '  Murders  have  been  committed,  vigilance  commit- 
"  tees  formed  and  mobs  assembled  in  this  county,  and  you 
"  may  take  these  matters  into  consideration  in  making 
"  your  verdict;  and  as  you  have  got  a   chance   now,  you 


+17 

"may  make  an  example  of  the  defendant!  The  jury 
"  may  have  come  to  a  different  conclusion  from  what  they 
"  would  if  the  court  had  quietly  rebuked  the  counsel,  and 
"  told  him  to  keep  his  argument  within  the  facts  and  evi- 
"  dence  in  the  case.  The  action  of  the  court  was  error, 
« for  which,  if  for  no  other  cause,  the  judgment  must  be 
"  reversed." 

In  State  v.  Smith,  75  N.  C,  306,  the  judgment  was 
reversed  for  misconduct  of  the  state's  attorney,  consisting 
in  the  following  expressions: 

"  The  defendant  was  such  a  scoundrel  that  he  was 
"  compelled  to  move  his  trial  from  Jones  county  to  a 
"  county  where  he  was  not  known.  *  *  *  The  bold, 
«  brazen-faced  rascal  had  the  impudence  to  write  me  a 
"  note  yesterday,  begging  me  not  to  prosecute  him,  and 
"  threatening  me  if  I  did,  that  he  would  get  the  legisla- 
"  ture  to  impeach  me."  Commenting  upon  these  expres- 
sions, after  stating  the  impropriety  of  their  utterance,  the 
court  proceed  as  follows: 

"  These  charges  and  invectives  were  not  only  allowed 
"  to  go  to  the  iury,  but  were  unexplained  and  uncor- 
"  rected  by  his  Honor  in  his  charge  to  the  jury.  In 
"  Dennis  v.  Haywood,  63  N.  C.  Rep.,  53,  the  course  here 
"  pursued  by  the  solicitor  is  strongly  reprobated.  '  Sup- 
"  pose,'  said  the  court,  '  a  defendant  is  to  be  tried  for  his 
"  life,  and  to  escape  unreasonable  prejudices  in  one 
"  county,  he  removes  his  trial  to  another.  The  fact  that 
"  he  does  so  may  be  used  to  excite  the  prejudice  that 
"  he  is  endeavoring  to  escape  justice;  thus  he  would 
<■'  escape  the  prejudices  of  one  community  to  find  them 
"  intensified  in  another.  Would  the  court  allow  the  fact 
"  to  be  given  in  evidence  or  commented  upon  by  counsel? 
"  Certainly  not.' 

»  So   in    Jcnliim   v.   The  N.  C.  Ore-Dressiny;    Co.,  65 


"  N.  C,  563,  it  is  said, '  Where  the  counsel  clearly  abuses 
"  his  privilege  to  the  manifest  prejudice  of  the  opposite 
"  party,  it  is  the  duty  of  the  judge  to  stop  him  then  and 
"  there.  If  he  fails  to  do  so,  and  the  impropriety  is  gross, 
"  it  is  good  ground  for  a  new  trial.' 

"And  in  The  State  v.  Williams,  65  N.  C,  505,  a  new 
"  trial  was  granted  in  a  case  where  language  less  harsh 
"  and  violent  was  allowed  by  the  court,  and  it  was  there 
"  said  that  it  was  the  duty  of  the  court  to  intervene  for 
"  the  protection  of  witnesses  and  parties,  especiall}^  in 
"  criminal  cases  where  the  state  is  prosecuting  one  of  its 
"  citizens.  The  defendant  was  arraigned  at  the  bar  of 
"  the  court,  mute  and  helpless,  without  raising  an  un- 
"  seemly  controversy  with  the  solicitor.  The  court  is 
"  constituted  a  shield  against  all  vituperation  and  abuse, 
"  and  more  especially  where  it  is  predicated  upon  alleged 
"  facts  not  in  evidence  or  admissible  in  evidence.  " 

In  the  light  of  this  language,  as  well  as  of  the  language 
of  our  own  Supreme  court  in  the  95th  111.,  above  cited, 
where  it  is  said:  "  It  is  the  duty  of  the  Circuit  court  to 
"  stop  counsel  and  effectually  prevent  such  unfairness 
"  when  attempted.  The  duty  is  in  all  cases,  and  em- 
"  phatically  so  when  life  or  liberty  is  involved,  to  prevent 
"  unfair  conduct  on  the  part  of  counsel.  It  cannot  be  sanc- 
"  tioned  to  permit  the  people's  attorney  to  thus  treat  the 
"  accused,  who  is  restrained  of  his  liberty  and  is  helpless 
"  unless  protected  by  the  court.  *  *  *  When  the 
"  unfairness  is  gross,  it  would  be  our  duty  in  all  doubtful 
"  cases  to  reverse  alone  for  that  reason  " — in  the  light  of 
these  e.xpressions,  we  again  call  attention  to  the  fact  dis- 
closed in  this  record,  that  not  only  was  the  representa- 
tive of  the  state  in  the  case  at  bar  permitted  to  proceed 
with  grossly  vituperative  expressions  concerning  the  de- 
fendants, calling  them  loathsome  murderers,  organized  as- 


419 

sassins,  scoundrels  and  wretches,  and  referring  to  matters 
not  in  evidence;  and,  above  all,  appealing  to  the  patriotic 
prejudices  of  the  jury,  by  claiming  that  the  defendants 
had  been  guilty  of  treason,  for  which  the  penalty  was 
death,  without  reference  to  the  commission  of  the  crime 
of  murder,  and  asserting  that  the  defendants  were  not 
citizens  of  this  country,  save  possibly  one  or  two 
of  them  (although  there  was  no  evidence  in  the 
record  whatever  to  sustain  that  assertion — the  state's 
attorney  arguing  that  they  were  not  citizens,  because 
had  they  been  we  would  have  proved  their  citizen- 
ship, unless  we  designedly  omitted  such  proof  to  es- 
cape proceedings  against  them  as  traitors),  not  only 
did  the  court  permit  the  state's  attorney  to  indulge  in  all 
these  gross  and  abusive  improprieties  in  his  closing  argu- 
ment, but  upon  objection  and  exception  being  made  to 
parts  of  this  conduct,  the  court  distinctly  refused  to  inter- 
fere, saying  to  the  defendants'  counsel  that  they  could 
"  save  the  point,"  and  allowing  the  state's  attorney  to  pro- 
ceed unchecked  and  unrestrained.  We  respectfully  sub- 
mit that  a  more  disgraceful  exhibition  of  the  outrageous 
and  unwarranted  abuse  of  the  privilege  of  counsel  has 
never  blotted  the  administration  of  justice  in  our  country. 
In  further  support  of  our  position,  we  also  cite  the  case 
of  Earlly.  The  People^  99  111.,  123.  And  also,  without 
stopping  to  quote  from  the  many  cases  in  which  this  wise, 
humane  and  just  rule  of  conduct  has  been  enforced  by 
the  courts,  we  cite  the  following  authorities,  with  the 
single  observation  that  they  go  to  the  full  length  of  the 
cases  above  quoted  from,  and  that  there  is  no  respectable 
exception  to  the  rule  thus  established: 

See    Brown  v.   Swincford,  42    Wis..   282, 

292-294. 
Tucher  v.  Hennecher,  41    N.    H.,  317-322. 


420 

Hilliard  v.  Beatiie,  59  N.  H.,  465. 
Berry  v.  State,  10  Ga.,  522. 
Mitchum  v.  6'/a/<',  11  Ga.,  61S. 
Cohel  V.  Co^e/,  79  N.  C,  587. 
W'/'/Z/V  V.  McNeil,  57  Tex.,  465. 
5^ff/e  V.  Turnbtill,  86  Mo.,  113. 
Henry  v.  Sioux   City,  S.   C.   Iowa,  Dec.  9, 
1886:  30  N.  W.  R-.,  630. 


EE.    ERROR  IX  REFlSIXfci  TO  ARREST  JUDGMEXT. 

We  deem  it  proper,  also,  to  submit  to  the  consideration 
of  the  court  the  point  that  there  was  an  error  in  the  court 
below  in  overruling  our  motion  in  arrest  of  judgment 
upon  the  ground  that  the  verdict  of  the  jury,  in  view  of 
the  indictment,  was  uncertain. 

Here  was  an  indictment  containing  sixty-nine  counts, 
as  before  suggested;  one  series  of  these  counts  charged 
the  defendants  with  jointly  committing  the  murder  (a)  by 
throwing  a  bomb,  (b)  by  a  revolver,  (c)by  an  unknown 
weapon.  Then  followed  ten  series  of  counts  of  six  each, 
charging  the  plaintiffs  in  error  as  being  guilty  as  accesso- 
ries to  the  murder,  (a)  by  the  throwing  of  a  bomb  by 
one  of  their  number,  (b)  by  the  firing  of  a  revolver  by 
one  of  their  number,  and  (c)  b}'  the  use  of  an  unknown 
weapon  by  one  of  their  number;  and  in  addition  to  this, 
there  were  six  counts,  charging  the  defendants  as  being 
accessory  to  the  murder  by  an  unknown  part}-,  (a)  by 
throwing  a  bomb,  (b)  by  the  use  of  a  revolver,  and  (c) 
by  the  use  of  an  unknown  weapon.  Each  series  of  counts 
charging  accessoryship  involved  three  counts,  charging 
that  the  parties,  being  present,  aided,  abetted  and  assisted 
the  act;  and    three  others    that,  not  being    present,  they 


had  aided,  advised,  encouraged  or  abetted  the  throwing  of 
the  bomb. 

The  verdict  of  the  jury  found  the  defendants  "  guilty  of 
"  murder  in  manner  and  form  as  charged  in  the  indict- 
"  ment."  What  does  this  mean?  Does  it  mean  that  the 
fury  found  the  defendants  guilty  as  accessories  to  the 
throwing  of  the  bomb  by  Rudolph  Schnaubelt?  If  that 
was  the  finding  of  the  jury  and  the  basis  of  their  verdict, 
we  were  entitled  to  have  that  appear  in  the  record,  to 
know  just  what  case  we  were  required  to  meet  under  this 
writ  of  error.  Does  it  mean  that  the  jury  found  the 
plaintiffs  in  error  guilty  of  themselves  committing  the  of- 
fense? If  so,  we  were  entitled  to  know  that  fact,  to  be 
prepared  in  this  court  to  consider  that  issue.  Does  it 
mean  that  the  jury  found  the  plaintiffs  in  error  guilt}'  as 
accessories  to  the  throwing  of  the  bomb  by  an  unknown 
party,  and  not  by  Schnaubelt?  If  so,  we  were  entitled  to 
have  that  fact  appear,  that  in  a  presentation  of  this  cause 
to  this  court  we  might  be  disembarrased  of  the  false  is- 
sue, and  might  be  required  to  meet  alone  the  finding  of 
the  jury,  whatever  that  was. 

The  indictment  charged  the  commission  of  the  murder 
in  different  ways,  absolutely  irreconcilable  with  one  an- 
other. If  the  plaintiffs  in  error  were  guilty  of  committing 
the  murder,  in  manner  and  form  as  charged  in  one  count, 
then  they  were  not  guilty  of  the  murder  in  manner  and 
form  as  charged  in  another  count.  In  fact,  no  one  mur- 
der, in  the  nature  of  things,  could  be  committed  in  man- 
ner and  form  as  charged  in  this  indictment,  because  this 
indictment  charges  murder  under  different  and  absolutely 
antagonistic  methods,  alike  as  to  the  party  doing  the  act 
and  the  instrument  used  in  the  commission  of  the  offense. 
To  find,  therefore,  that  the  defendants  were  guilty  of 
murder  in  manner  and  form  as  charged   in  the  indictment 


was  finding  entirely  too  much.  The  plaintiffs  in  error 
were  entitled  to, have  the  verdict  applied  to  the  particular 
count  or  counts  in  the  indictment  which  the  jury  found 
to  be  supported  by  the  evidence,  and  to  have  these 
counts  singled  out  b}'  the  verdict,  there  being  no 
nolle  -pros,  by  the  state  as  to  any  of  the  counts  in  the 
indictment. 

We  beg  the  court,  by  way  of  testing  the  soundness  of 
this  contention  of  ours,  to  select  the  count  in  this  indict- 
ment which  is  sustained  beyond  a  reasonable  doubt  by  the 
evidence  introduced.     It  cannot  be  done! 

And  here  we  may  call  attention,  properlv,  we  think,  to 
another  error  in  the  charge  of  the  court  in  reference  to 
the  form  of  the  verdict.  Such  instructions  should  have 
directed  the  jury  to  designate  the  count  or  counts  in  the 
indictment  under  which,  if  at  all,  they  found  the  plaintiffs 
in  error  guilty. 

Conclusion. 

We  confidently  submit  that  material  errors  obtain  in  this 
record  as  to  each  and  every  one  of  the  plaintiffs  ifi  error  ; 
and  as  to  each  and  every  one  of  the  plaintiffs  in  error  there 
is  an  absolute  failure  to  make  out  a  case  justifying  a  con- 
viction by  legitimate  evidence  under  the  rules  of  law 
established  by  the  authorities  above  considered. 

We  are  not  unmindful,  however,  that  the  suggestion  may 
be  made  that  while  the  error  may  be  obvious  as  to  certain 
of  the  plaintiffs  in  error,  or  while  there  may  be  an  utter 
and  entire  failure  to  make  out  a  case  by  legal  evidence  as 
to  certain  of  the  plaintiffs  in  error,  that  the  case  may  stand 
differently  in  the  judgment  of  some,  either  upon  the  evi- 
dence or  as  to  the  errors  assigned,  as  to  one  or  more  of 


423 

the  plaintirts  in  error;  and  an  affirmance  of  the  judgment 
may  be  urged  as  to  some  of  them,  coupled  with  a  sub- 
stantial admission  that  as  to  others  there  must  be  a 
reversal. 

We  are  led  to  suppose  that  a  course  of  this  kind  may 
be  suggested  because  we  find,  on  inspecting  the  record, 
that  there  was  in  this  case  entered  up  as  against  each 
plaintifilMn  error  a  several  judgment.  As  to  this  matter  of 
severing  in  the  judgment,  we  beg  to  call  attention  to  the 
fact  that  in  our  view  no  weight  should  be  given  to  this 
act  of  the  clerk  in  the  making  up  of  his  record,  forasmuch 
as  it  appears  that  the  proceedings  from  the  first  to  the  last 
were  in  fact  one  proceeding  so  far  as  the  state  was  con- 
cerned. As  we  have  before  suggested,  our  eflort  to 
secure  a  separate  trial  for  certain  of  the  plaintiffs  in  error 
was  opposed  by  the  state,  and  our  application  to  that  end 
denied  by  the  court.  The  indictment  is  one  indictment 
against  all  of  the  plaintiffs  in  error,  charging  them  as  being 
jointly  accessories  to  the  above  murder.  The  proceed- 
ings from  first  to  last  were  a  unit.  The  verdict  is  one 
verdict,  not  finding  the  plaintiffs  in  error  severally  guiltjs 
save  only  as  to  Mr.  Neebe,  as  to  whom  a  different  pun- 
ishment was  assigned;  but  finding  the  seven  plaintiffs  in 
error  other  than  Neebe  guilty  and  fixing  their  penalty  in 
one  sentence.  The  motion  for  a  new  trial  was  interposed 
in  behalf  of  them  all;  and  all  of  the  proceedings  had 
thereunder  were  as  in  the  case  of  a  single  defendant. 
Aside  from  these  considerations,  however,  the  law  is  well 
settled  that  in  an  action  of  this  character,  where  parties 
are  tried  jointly  as  conspirators,  and  judgment  has  gone 
against  them,  error  as  to  one  reverses  as  to  all. 

In  support  of  this  position  we  call  attention  to  the  fol- 
lowing among  other  authorities.     The  rule  is  stated  by 


424  • 

by  Mr.  Wharton  in  his  work  upon  criminal  pleadings  and 
practice,  section  305,  as  follows: 

"  From  the  peculiar  character  of  the  pleading  in  con- 
"  spirac}',  a  new  trial  as  to  one  defendant  is  a  new  trial 
"  as  to  all,"  citing  in  support  of  the  text  Rex  v.  Gompcrtz, 
9th  Queen's  Bench,  824;  Wharton  Cr.  Law,  9th  Ed.,  Sec. 
1,395;  (^o»i.  V.  McGowan,  2  Parsons,  341. 

In  Com.  V.  McGowan,  2  Parsons,  365,  the  law  is  thus 
declared  on  this  point: 

"But  it  has  been  said  that  although  the  court  shall  be 
"  satisfied  the  rejection  of  this  evidence  might  have  in- 
"  fluenced  the  verdict  as  to  McGowan,  still  it  does  not 
"  apply  to  Pratt  and  Pence.  If  the  fallacy  of  such  a  po- 
"  sition  has  not  already  been  shown,  I  will  refer  to  one 
"  case  already  cited  in  this  opinion,  which  in  my  view 
"  settles  the  question.  It  is  the  case  of  the  J^/ccn  v. 
"  Gomfertz,  6  Penn.,  L.  J.,  377,  where  it  is  held,  in  con- 
"  spiracy,  a  new  trial  cannot  be  granted  as  to  one  without 
"  embracing  all.  I  quote  the  remark  of  Lord  Ch.  J- 
"  Dexman.  'I  should  add,  we  think  that  there  is  no 
"  ground  to  disturb  the  verdict,  so  far  as  it  affects  the  de- 
"  fendant,  Gompertz;  but  where  two  or  more  persons  have 
"  been  convicted  of  a  conspiracy,  it  is  not  possible  to 
"  grant  a  new  trial  as  to  one  conspirator  and  not  as  to 
"  the  others.  Such,  in  my  opinion,  is  unquestionably  the 
"  law.  A  different  doctrine  would  subvert  the  whole 
"  principle  upon  which  the  law  of  conspiracy  is  based. 
"  On  trials  for  this  oHense,  all  connected  with  the  trans- 
"  action  are  considered  as  one.  The  acts  of  one  may  be 
'•  viewed  as  the  acts  of  each  of  the  others.  It  is  the 
"  union  of  mind,  the  concert  of  action,  which  creates  the 
"  offense.  *  *  *  if^  then,  it  should  be  admitted  there 
"  was  ground  foa  setting  aside  the  verdict  as  to  one,  how 


425 

"  can  the  court  know  the  bearing  which  the  evidence  of  his 
"  acts,  or  connection  in  the  affair,  might  have  had  in  pro- 
"  ducing  the  conviction  of  the  others,  when,  perhaps,  if 
"  such  an  individual  and  his  transactions  were  thrown  out 
"  of  view,  a  jury  might  not  have  acquitted  those  on  whom 
"  the  reasons  for  a  new  trial  do  not  operate  so  favor- 
"  ably.' "  . 

The  same  rule  is  announced  in  3d  Russell  on  Crimes 
pth  Ed.,  star  page  176.  This  rule  has  been  recog- 
nized and  acted  upon  by  this  court,  so  far  as  we  know, 
without  any  exception  whatever.  These  authorities  are 
controlling;  for  in  the  case  at  bar,  the  state's  sole  basis  of 
conviction,  as  evidenced  by  its  instructions,  was  the  al- 
leged conspiracy,  which,  therefore,  had  to  be  found  by 
the  jury  as  the  ground-work  of  their  verdict,  the  conspir- 
acy merged  in  the  felony  charged,  but  a  finding  of  con- 
spiracy being  a  condition  precedent  to  the  verdict  in  this 
case  and  involved  therein,  under  the  theor}'  on  which  the 
cause  was  tried. 

We  know  of  no  exception  to  this  rule  as  to  all  parties 
joining  in  the  writ  of  error. 

We  have,  perhaps,  dwelt  upon  this  case  at  what  may 
seem  unreasonable  length.  The  importance  of  the  issues 
involved,  the  vast  bulk  of  the  record,  the  variety  and 
moment  of  the  principles  necessarily  considered,  and  the 
number  of  the  parties  whose  lives  and  liberty  are  at 
stake,  must  plead  excuse  if  we  have  offended  in  this  par- 
ticular; and  we  are  sure  will  secure  for  us  lenient  judg- 
ment at  the  hands  of  this  court. 

We  repeat  that  upon  a  review  of  the  entire  evidence 
in  the  case,  and  under  the  rules  of  law,  establisheci  b}'  the 
authorities  which  we  have  above  presented  and  considered, 
first,   that   there    was  no  legal  evidence  in   this  case  to 


426 

justify  the  conviction  of  any  one  of  the  plaintiffs  in  error; 
second,  that  each  and  all  of  the  plaintiffs  in  error  have 
been, 'in  the  language  of  our  statute,  "aggrieved  by 
"  manifest  and  material  error  appearing  of  record,"  against 
which  they  are  entitled  to  be  relieved  under  this  writ  of 
error  and  pursuant  to  law. 

Respectfully  submitted. 

W.  P.  Black, 
Salomon  Sc  Zeisler, 

Atlys.  for  Plffs.  in  Error. 

Note.  In  further  support  of  our  views,  we  beg  to 
refer  the  court  to  the  Brief  and  Argument  filed  herein  by 
Hon.  Leonard  Swett,  of  counsel  with  us  in  this  cause. 


